1. This revision petition calls in question order dated 16-12-2016 passed by the learned Additional Sessions Judge, Jalalpur Pirwala, whereby the Petitioner‟s application under Section 540 Cr.P.C for summoning injured PWs Mst. Izat Mai and Mst. Faiz Mai was dismissed.
2. The facts relevant for the adjudication of the present petition are that the Petitioner got FIR No. 389/2010 dated 15-09-2010 registered against Respondents No. 2 to 9 at Police Station City, Jalalpur Pirwala, for offences under Sections 324/337-A(i)/342/148/149 PPC. Subsequently, on the death of Naveed Abbas, Section 302 PPC was added. The Investigation Agency probed into the case and found Respondents No. 2 to 9 guilty. Report under Section 173 Cr.P.C. was submitted accordingly. The learned Additional Sessions Judge indicted them and put them to trial. During the course of trial the prosecution produced 22 witnesses. On 22-10-2016, after recording the testimony of PW-22 Dr. Saleem Akhtar and receiving certain documentary evidence, the learned trial Court adjourned the case to 29-10-2016 for closing of the prosecution evidence and for the statement of the accused (Respondents No. 2 to 9) under Section 342 Cr.P.C. On 29-10-2016, the learned prosecutor was not available.
In his absence the learned counsel for the Petitioner/Complainant made a statement that whereby he gave up PWs Mst. Izat Mai, Mst. Faiz Mai, Muhammad Rafiq, Abdul Rasheed and Ghulam Mustafa 780/C. Thereupon, the case was adjourned to 5-11-2016 and the learned Court once again fixed it for closing of the prosecution evidence. The case was subsequently listed for different dates but the prosecution evidence could not be closed. On 5-12-2016, the learned DDPP filed an application under Section 540 Cr.P.C for summoning PW Samiullah 1081/C and then, on 10-12-2016, the Petitioner/Complainant submitted another application for summoning PWs Mst. Izat Mai and Mst. Faiz Mai aforesaid (who were earlier given-up by the learned counsel for the Complainant vide statement dated 29-10-2016). The learned trial Court, through a single order dated 16-12-2016, allowed the former application but dismissed the latter. It is this order which has been assailed in this petition insofar as it refuses to summon Mst. Izat Mai and Mst. Faiz Mai.
3. The learned counsel for the Petitioner contends that Mst. Izat Mai and Mst. Faiz Mai are the injured witnesses of the case and are thus important witnesses. Their testimony is vital for the prosecution‟s case and if they are not examined it would cause miscarriage of justice. The learned Law Officer representing the State supports this contention.
4. On the other hand, learned counsel for the Respondents No. 2 to 9 has controverted the aforementioned contentions and has defended the impugned order. He has argued that the Petitioner/Complainant gave up the PWs after due consideration and application of mind. He cannot be permitted to go back on his decision. Further, if this application is allowed at this belated stage it would prejudice the Accused/Respondents No. 2 to 9.
5. Before I consider the respective contentions of the learned counsel for the parties, it may be beneficial to reproduce Section 540 Cr.P.C. because the entire controversy revolves around it.
540. Power to summon material witness or examine persons present.— Any Court may, at any stage of any inquiry, trial or other proceedings under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness or recall and 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.
6. A bare reading of Section 540 Cr.P.C shows that it consists of two parts which are clearly distinguishable. The first part empowers the court to summon any person as a witness or examine any person in the attendance even if he had not been summoned as a witness. Besides, it may recall and examine any person already examined. These powers may be exercised at any stage of an inquiry, trial or proceedings under the Code. On the other hand, the second part ordains that the Court shall summon and examine or recall and re-examine any such person if it appears to it that his evidence is imperative for a just decision of the case. A vital distinction between these two parts as the legislature has used the word “may” in the first one part and “shall” in the second. This makes the former discretionary and the latter obligatory. In “Mehrzad Khan v. The State” (PLD 1991 SC 430), the august Supreme Court of Pakistan observed that “the word „may‟ in certain circumstances, if the context in which it has been used so demands, can be construed as „shall‟ and the word „shall‟ can be interpreted as „may‟. But if in a particular provision of a statute the above two words are used, in that event the same would carry their normal connotation in the absence of any compelling reason to construe them otherwise.”
7. The distinction between the two parts of Section 540 Cr.P.C. was explained in the case of “Muhammad Azam v. Muhammad Iqbal and others” (PLD 1984 SC 95) as follows:
“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.”
8. The above view was also reiterated in “The State v. Muhammad Yaqoob and others” (2001 SCMR 308) where it was held that in order to call additional evidence the Court is not required to wait for the prosecution or the defence to make an application to it. Further, their carelessness or ignorance should not hold it from proceeding to summoning material witness on its own to meet the ends of justice.
9. In Muhammad Azam‟s case (supra) the expression “appears to it” used in the second part of Section 540 Cr.P.C. was examined and it was ruled that even when it is not possible for the Court to give a clear verdict with regard to a piece of evidence it may still exercise this power. It was held:
Further information regarding summoning of given-up injured prosecution witnesses under Section 540 Cr.P.C can be solicited from AUJ LAWYERS. Feel free to contact us in case you need any clarification and/or require legal assistance regarding similar matters.