PLJ 2025 Cr.C. 844 (DB)
[Lahore High Court, Lahore]
Present: Farooq Haider and Ali Zia Bajwa, JJ.
MUHAMMAD NASIR--Appellant
versus
STATE, etc.--Respondents
Crl. A. No. 28571 of 2025, decided on 23.9.2025.
Criminal Procedure Code, 1898 (V of 1898)--
ملزم کا بیان-استغاثہ کے ثبوت قلم بند کردیئے گئے تھے ، ملزم کا بیان سیکشن 342 ،ضابطہ فوجداری کے تحت ریکارڈ کیا گیا تھا ۔ اور مقدمہ حتمی دلائل کے لیے طے کیا گیا جب ٹرائل کورٹ نے دستاویز کو ہینڈ رائٹنگ ایکسپرٹ کو موازنہ کرنے اور دیگر تسلیم شدہ دستاویزات کے ساتھ رپورٹ کرنے کے لیے بھیجنے کا حکم دیا اور کہا کہ اس عدالت نے حکم کو برقرار رکھا ۔
----S. 342--Statement of accused--Prosecution evidence was closed, statement of accused was recorded under Section: 342, Cr.P.C. and case was fixed for final arguments when trial Court passed order for sending document to Handwriting Expert for comparison and report alongwith other admitted documents and said order was upheld by this Court. [Pp. 848 & 849] A
PLD 1984 SC 95.
Criminal Procedure Code, 1898 (V of 1898)--
حکم کے ذریعے طلب کیے گئے گواہ کی گواہی اہم اور ضروری ہے ، پھر کسی فریق کی طرف سے چھوڑی گئی خامیوں کو دور کرنے یا کسی فریق کی طرف سے چھوڑی گئی خامیوں کو پر کرنے سے متعلق اعتراض غیر متعلقہ ہو جاتا ہے اور یہ عدالت کے لیے لازمی ہو جاتا ہے کہ وہ ایسے گواہ کو طلب کرے اور اس کی جانچ کرے-حالانکہ اعتراض شدہ حکم کے ذریعے طلب کیے گئے گواہ کا نام چالان رپورٹ کے "گواہوں کے کیلنڈر" میں دستیاب نہیں ہے پھر بھی اس کا بیان سیکشن: 161 ، ضابطہ فوجداری کے تحت درج کیا گیا تھا ۔ جیسا کہ ڈپٹی پراسیکیوٹر جنرل نے دستیاب ریکارڈ کو دیکھنے کے بعد آگاہ کیا ہے ؛ لہذا ، کیس کے حالات میں ، چالان رپورٹ میں گواہ کا نام محض چھوڑنا عدالت کو گواہ کو طلب کرنے کے اختیارات کا استعمال کرنے سے نہیں روک سکتا ہے جس کا ثبوت مقدمے کے منصفانہ فیصلے کے لیے ضروری ہے اور اس سلسلے میں-اگر عدالت نے اس کے سامنے چیلنج کیے گئے فیصلے کی جانچ پڑتال کی ہے ، اس کی استدلال اور نتائج سے مطمئن ہے اور اس کا خیال ہے کہ اس میں کسی مداخلت کا مطالبہ نہیں کیا جاتا ہے ، تو عدالت محض متنازعہ فیصلے کی توثیق کر سکتی ہے اور ذیل میں عدالت کی استدلال کو اپنا سکتی ہے ۔ اپیل مسترد کر دی گئی ۔
----Ss. 540 & 342--Power to summon material witness or examine person present--Evidence of witness summoned through impugned order is important and necessary in case, then objection regarding curing lapses/omissions left by any party or filling lacuna left by any party becomes irrelevant and it becomes mandatory for Court to summon and examine such witness--Although name of witness summoned through impugned order is not available in “calendar of witnesses” of challan report yet his statement was recorded under Section: 161, Cr.P.C. as apprised by Deputy Prosecutor General after going through available record; therefore, in circumstances of case, mere omission of name of witness in challan report cannot deter Court from exercising powers for summoning witness whose evidence is necessary for just decision of case and in this regard--If Court having examined decision challenged before it, is satisfied with its reasoning & conclusions and is of view that it does not call for any interference, then Court can simply endorse impugned decision and adopt reasoning of Court below--Appeal dismissed.
[Pp. 849 & 852] B, C & D
PLD 2021 Balochistan 127 & PLD 2020 SC 617.
Mian Noman Sharif, Advocate for Appellant.
Ms. Nuzhat Bashir, Deputy Prosecutor General along with Hassan T/S.I. and record of the case for State.
Date of hearing: 23.9.2025.
Judgment
Farooq Haider, J.--Through this appeal, Muhammad Nasir (appellant) has challenged the vires of order dated: 06.05.2025 passed by learned Additional Sessions Judge, Wazirabad/trial Court whereby application filed by Deputy District Public Prosecutor under Section: 540, Cr.P.C. for summoning of Muhammad Naveed ASI (Moharir) and recording his evidence as witness in the case, has been accepted; relevant portion of the impugned order is hereby reproduced as under:
“Perusal of record shows that after framing of charge prosecution has examined eight witnesses and learned prosecutor closed the evidence and thereafter statements of accused u/S. 342, Cr.P.C. were recorded and case was fixed for final arguments. As the statement of the witness intended to be produced u/S. 161, Cr.P.C. was recorded during investigation but his name could not be mentioned in the calendar of witnesses, therefore, the evidence of prosecution was closed by learned DDPP. Evidence of Moharrar is important and necessary in this case. If evidence of the witness is recorded, it might be helpful to reach just conclusion of the case. In the interest of justice, application filed by the prosecution is accepted. Witness is summoned for recording of his evidence for 10.05.2025.”
2. Learned counsel for the appellant submits that prosecution evidence was already closed, statement of the appellant/accused was already recorded under Section: 342, Cr.P.C. and case was fixed for final arguments when application was filed by the State under Section: 540, Cr.P.C. for recording evidence of Muhammad Naveed ASI (Moharir); further submits that aforementioned application cannot be entertained at such belated stage as it amounts to filing the lacuna in the case of prosecution as well as taking benefit which was accrued in favour of the appellant, therefore, impugned order is not sustainable in the eyes of the law and requests for setting-aside the same.
3. Learned Deputy Prosecutor General after going through the record (brought by aforementioned police official) apprises that Muhammad Naveed ASI (Moharir) is an important witness of the case as he handed over case property to the Investigating Officer, who deposited the same in Maalkhana Saddar and his evidence was necessary for just decision of the case, therefore, impugned order has been rightly passed by the trial Court; also apprises that statement of Muhammad Naveed ASI (Moharir) was already recorded under Section: 161, Cr.P.C. during investigation of the case; finally prays for dismissing this criminal appeal.
4. Arguments heard and available record appended with this appeal as well as brought by aforementioned police official, has been perused with the help of learned counsel for the parties.
5. It has been noticed that case in hand is registered under Control of Narcotic Substances Act, 1997 and there is no cavil to the proposition that chain of safe custody is of vital importance in such cases. Since Muhammad Naveed ASI (Moharir) handed over case property to the Investigating Officer of the case for depositing the same in Maalkhana Saddar, therefore, his evidence is necessary for proving chain of safe custody and thus essential for just decision of the case. It is well settled that criminal justice system is inquisitorial and not the adversarial because Court has to reach at just decision of the case; any piece of evidence which is essential for just decision of the case, has to be brought on record irrespective of the fact that either it favours one party or goes against other; any delay for filing any application for calling/recalling of witnesses or apprehension of filling lacuna in the case or stage of the case is immaterial if said piece of evidence is otherwise necessary for just decision of the case. Appellant/accused has right to challenge the veracity of said evidence through cross-examination over said witness and it goes without saying that after recording of statement of the witness, accused will be examined under Section: 342, Cr.P.C. qua said statement and he will have every right to offer explanation in this regard as well as produce any evidence in his defence for negating the same; furthermore, accused will also have right to himself appear on oath under Section: 340 (2), Cr.P.C. for disproving said piece of evidence.
As far as contention of learned counsel for the appellant that benefit accrued in favour of accused has been taken away through impugned order, is concerned, same is of no legal worth for the reason that such approach may be adopted in civil lis but not in criminal case where approach of the Court must be inquisitorial in nature; in this regard, case of “Chairman, NAB versus Muhammad Usman and others” (PLD 2018 Supreme Court 28) can be safely referred and relevant portion from the same is reproduced as under:
“The role of the Court under the provision of Section 540, Cr.P.C. is inquisitorial where it endeavours to discover the truth, suppressed by both or one party to the case to incapacitate the Court to reach at a just conclusion. The role of the Judge does not undergo change because in exercising inquisitorial powers, the law has imposed obligation on it to discover the truth and to secure the ends of justice.” (emphasis added)
Furthermore, case of “Abdul Latif Aasi versus The State” (2001 P.Cr.R 548) can also be advantageously referred on the subject and its relevant Paragraph No. 7 is hereby reproduced below:
“7. The main plank of the petitioner’s arguments before me has been that in our adversarial system of justice there was no scope for an inquisitorial approach adopted by learned Trial Court through the impugned order passed by it. However, the learned counsel for the petitioner have failed to point out any statutory sanction for observing that our system of justice is adversarial and not inquisitorial. If one looks at the history of our judicial system one may notice that this concept has gradually developed therein as a rule of prudence and practice mainly as regards civil litigation wherein the parties to a lis are required to lay their respective claims before the Trial Court and then substantiate, the same through evidence to be led by them. There are indications available in the Code of Civil Procedure which support the perception that civil litigation in our system is, by and large, adversarial in nature. But even there the inherent and general powers of the Court, and even some specific powers, sometimes cut across that concept. A general acceptance of that concept in the civil litigation is, even otherwise, understandable. In a civil lis, more often than not, it is the parties to the lis alone who are interested in its outcome and effect. This cannot be said to be true for a criminal case wherein an offence committed by an individual is considered to be an offence not only against his victim but also against the whole society and the State. Thus, in a criminal case an intentional or an un-intentional lapse on the part of the complainant, the Investigating Officer or the prosecuting counsel is not to be allowed to stand in the way of a Trial Court to rectify that lapse by calling in evidence on its own if such evidence can have a bearing on the determination of guilt or innocence of the accused person. Such a power has to be conceded to a Criminal Court in the larger interest of the community at large. Looked at in this context the stage of a trial appears to be irrelevant to an exercise of such a power of the Court and the only factor relevant to the exercise of such a power cannot be other than the relevance of the evidence called.” (emphasis added)
It goes without saying that Ch.1-E of the Volume III of Lahore High Court Rules and Orders deals with recording of evidence in criminal cases and relevant portion of its Rule 2 clearly reflects as under:
“2. Duty of Court to elucidate facts.---……………………. …………………………………………………………………………..
a Judge in a Criminal trial is not merely a disinterested auditor of the contest between the prosecution and the defence, but it is his duty to elucidate points left in obscurity by either side, intentionally or unintentionally, to come to a clear understanding of the actual events that occurred and to remove obscurities as far as possible. The wide powers given to the Court by [Article 161 of the Qanun-e-Shahadat, 1984] ***[…] should be judiciously utilized for this purpose when necessary”.
(emphasis added)
Learned counsel for the appellant vehemently argued that after closing of prosecution evidence, recording of statement of the accused under Section: 342, Cr.P.C. and fixation of the case for final arguments, said application for summoning of the witness cannot be entertained but said contention is without any force because if evidence is essential for just decision of the case, then summoning of said witness is of much importance and it is relevant to mention here that in the case of “Abdul Latif Aasi versus The State” (supra), prosecution evidence was closed, statement of the accused was recorded under Section: 342, Cr.P.C. and case was fixed for final arguments when trial Court passed the order for sending the document to the Handwriting Expert for comparison and report alongwith other admitted documents and said order was upheld by this Court; in this regard, relevant portion of the case law is reproduced as under:
“On 30.6.1998 the prosecution closed its case and the petitioner got his statement recorded under Section 342, Cr.P.C. wherein he denied all the allegations of fact levelled against him by the prosecution. On the same day final arguments on the merits of the main case were also heard by the learned Trial Court and then the matter was adjourned to 4.7.1998 “for orders”. On 4.7.1998 and then on 6.7.1998 the case got adjourned for one reason or the other but on 8.7.1998 the learned Special Judge, Anti-Corruption, Faisalabad Division, Faisalabad passed the following order in the case:
“Heard. The record examined. Documents P-1, P-2 should be sent to the Handwriting Expert for comparison and report alongwith the other admitted documents. To come up on 20.7.98 for further hearing.”
This order passed by the learned Special Judge, Anti-Corruption, Faisalabad Division, Faisalabad has been assailed before this Court through the present revision petition filed by the accused-petitioner.”
So far as another contention raised by learned counsel for the appellant that impugned order (mentioned above) filled lacuna left by the prosecution is concerned, same is also of no avail because when trial Court has categorically observed that evidence of witness summoned through impugned order is important and necessary in the case, then objection regarding curing lapses/omissions left by any party or filling lacuna left by any party becomes irrelevant and it becomes mandatory for the Court to summon and examine such witness; in this regard, guidance has been sought from the case of “Muhammad Azam versus Muhammad Iqbal and others” (PLD 1984 Supreme Court 95) and relevant portions from its Pages No. 118, 121 and 122 are hereby reproduced:
(Page 118) “The duty nevertheless lay squarely on the trial Court to summon the entire available evidence on this controversy and record/ admit the same by virtue of power under Section 540, Cr.P.C. It reads as follows:
“540. Power to summon material witness or examine person present. Any Court may, at any stage of any inquiry, trial of 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.”
This provision is divided into two parts: one where it is only discretionary for the Court to summon a Court witness suo motu or on application, and the second part where it is mandatory for the Court to do so. The main condition to be satisfied with regard to the second part is that the evidence to be summoned under this part should appear to the Court to be essential to the just decision of the case.”
(Page 121) “It needs to be observed that for purpose of acting under Section 540, Cr.P.C. (whether the first or second part), it is permissible to look into the material not formally admitted in evidence, whether it is available in the records of the judicial file or in the police file or elsewhere. The perusal of both these records would show that if evidence, in connection with the items already noticed, would have been properly entertained the reasoning and decision of the learned two Courts might have been different.
Sometimes apprehension is expressed that any action by the trial Court under Section 540, Criminal Procedure Code would amount to filing the gaps and omissions in the version or evidence of one or the other party. It may straightaway be observed that in so far as the second part of Section 540 goes, it does not admit any such qualification. Instead, even if the action thereunder is of the type mentioned, the Court shall act in accordance with the dictates of the law. In fact the Court has no discretion in this behalf. It is obligatory on it to admit evidence thereunder if it is essential for the just decision of the case.”
(emphasis added)
(Page 122) “In yet another case Rashid Ahmad v. The State (1), this Court made it more clear that “a criminal Court is fully within its rights in receiving fresh evidence even after both the sides have closed their evidence and the case, is adjourned for judgment, for, till then the case is still pending. The only question therefore, is as to whether in the interest of fairness further opportunity should have been given to the accused”; and, it was held that “there is no bar to the taking of additional evidence in the interest of justice, at any stage of inquiry or trial as provided by the provisions of Section 540, Cr.P.C.” In these cases if the question regarding so-called filling of the gaps would have been raised more squarely, the answer in view of what has been noticed above would have been the same as already rendered; namely, that if it is essential for the just decision of the case, then the same is the command of the law under the second part of Section 540, Cr.P.C. It would not be possible to canvass that when the action under the said provision amounted to so-called filling of a gap, the Court would for this reason, avoid its duty to admit the additional evidence. Two more decisions by this Court as illustrative of the practice, may also be noted. There are: Bashir Ahmad v. The State and another (2), and Yasin alias Cheema and another vs. The State (3).”
(emphasis added)
In this regard, further guidance has been sought from the case of “The State vs. Muhammad Yaqoob and others” (2001 SCMR 308) and relevant portions from its Page No. 325 are hereby reproduced:
“It is thus manifest that calling of additional evidence is not always conditioned on the defence or prosecution making application for this purpose but it is the duty of the Court to do complete justice between the parties and the carelessness or ignorance of one party or the other or the delay that may result in the conclusion of the case should not be a hindrance in achieving that object.”
(emphasis added)
“It is correct that every criminal case has its own facts and, therefore, no hard and fast rule or criteria for general application can be laid down in this respect but if on the facts of a particular case it appears essential to the Court that additional evidence is necessary for just decision of the case then under second part of Section 540, Cr.P.C. it is obligatory on the Court to examine such a witness ignoring technical/formal objection in this respect as to do justice and to avoid miscarriage of justice”.
(emphasis added)
Although name of the witness summoned through impugned order is not available in the “calendar of witnesses” of challan report yet his statement was recorded under Section: 161, Cr.P.C. as apprised by learned Deputy Prosecutor General after going through the available record; therefore, in the circumstances of the case, mere omission of name of the witness in challan report cannot deter the Court from exercising powers for summoning the witness whose evidence is necessary for just decision of the case and in this regard, case of “Naseebullah versus The State” (PLD 2021 Balochistan 127) can be referred and relevant portion from the same is hereby reproduced as under:
“9. Similarly, under Section 540, Cr.P.C. the Court can summon a material witness even if his/her name does not appear in the column of witnesses of the challan, provided his/her evidence is deemed essential by the Trial Court for the right decision of the case.”
It is relevant to mention here that Supreme Court of Pakistan in the case of “Farooq Hussain and others versus Sheikh Aftab Ahmad and others” (PLD 2020 Supreme Court 617) has clearly observed that if the Court having examined the decision challenged before it, is satisfied with its reasoning & conclusions and is of the view that it does not call for any interference, then Court can simply endorse the impugned decision and adopt the reasoning of the Court below; relevant portion of the said order is hereby reproduced:
“It is emphasized that if this Court, having examined the judgment challenged before it, is satisfied with its reasoning
and conclusions and is of the view that it does not call for any interference, this Court can simply endorse the impugned judgment and adopt the reasoning of the Court below. In such a case, re-tracing the same path travelled by the Court below appears to be an unnecessary exercise and a waste of public time-time which can be allocated to other cases where the decisions of the Courts below have been overturned or modified. Finding no reversible error in the judgment, a concise, simple order can suffice. On the other hand, if the Court is to reverse or modify the judgment of the Court below, the reasons for the reversal or modification must be set forth.
3. This approach adopted by the Court, is by no means a short-cut which is offensive to fair trial under Article 10-A of the Constitution nor does it in any manner undermine due process and fair-play. It is simply a creative way forward that spares the Court from writing opinions where a mere adoption of a well-reasoned judgement of the Court below through a short order serves the purpose adequately.”
6. In view of what has been discussed above, it has been found that impugned order passed by the trial Court is perfectly in accordance with settled principles of law on the subject as well as facts of the case, therefore, same needs no interference by this Court. Instant appeal is without merits and thus dismissed.
(A.A.K.) Appeal dismissed
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