IN THE
COURT OF LEARNED SESSIONS JUDGE, RAWALPINDI
In the matter of:
Nasir Mehmood son of Muhammad Arif, Caste Qureshi, resident of House No. CB-1204, Khayaban-e-Mira Bukhsh, Tench Bhatta, Rawalpindi.
…Petitioner
VERSUS
1. The State.
2. Mr. Ghulam Mustafa Yazdani, the learned Ellaqa Magistrate, P.S Saddar Berooni, Rawalpindi.
…Respondents
CRIMINAL REVISION UNDER SECTION 435/439-A Cr.P.C FROM THE ORDER DATED 11-01-2010 PASSED BY MR. GHULAM MUSTAFA YAZDANI, LEARNED ELLAQA MAGISTRATE, P.S SADDAR BEROONI, RAWALPINDI WHEREBY HE DISMISSED THE APPLICATION U/S 540 CR.P.C AND PASSED THE IMPUGNED ORDER
Respectfully Sheweth:-
1. That the petitioner is complainant of case FIR No. 340 dated 29-07-08 Offence U/S 506/379/447/148/149 PPC P.S Saddar Berooni, Rawalpindi and the trial is under progress in the court of Learned Magistrate i.e. respondent No.2 and is fixed for 13-01-2010 for recording of statement U/S 342 Cr.P.C.
2. That the petitioner moved an application U/S 540 Cr.P.C for re-summoning the investigating officer (PW3) and for getting the subject matter i.e. FIR bearing No. 340 to be exhibited as the evidence of the I.O (PW3) was recorded on 09-01-2010 but due to the lack of proper assistance at the bar / inadvertently the subject FIR bearing No.340 could not be exhibited which reveals from the statement of the I.O (PW3).
3. That on 09-01-2010 after the recording of evidence of PW3 i.e. Investigating Officer, the matter was adjourned for 11-01-2010 for recording of statement U/S 342 Cr.P.C as the intervening, there was weekly holiday being Sunday.
4. That when it transpired to the petitioner that omission has been done in not getting the FIR exhibited, the petitioner moved an application U/S 540 Cr.P.C for recalling of the investigating officer (PW3) and for getting the subject FIR exhibited which was declined by the learned respondent No.2 vide order dated 11-01-2010. (Copy of challan along with complete order sheet, FIR and application U/S 540 Cr.P.C are annexed herewith for the kind perusal by this August Court)
5. That the order passed by the learned respondent No.2 seems arbitrary, whimsical and not tenable in law. The learned Magistrate without giving any reason branded the essential witnesses whose reexamining and getting the FIR exhibited is necessary for the just decision of the case but the learned Magistrate passed the order in haste that too in a whimsical manner.
6. That it is pertinent to mention here that the whole case of the petitioner being the complainant, is based on the subject FIR mentioned hereinabove and in case the application dated 11-01-10 of the petitioner is not allowed, then the petitioner will suffer an irreparable loss and as the whole case will collapsed in non-existence of the subject matter i.e. FIR No.340.
7. That the re-summoning of the investigating officer is pivotal and essential for the just decision of the case and the impugned order of the learned respondent No.2 is capricious and untenable in the eyes of law by not re-summoning the essential witness that too declining to exhibit the subject matter i.e. FIR. Section 540 Cr.P.C having two parts and the second part of the provision is salutary and mandatory in nature and there is no option left for the learned Magistrate / respondent No.2 except to summon the witness and to get the FIR exhibit therefore, the re-summoning of the witness is essential for the just decision of the case and for ends of the justice.
8. That apart from section 540 Cr.P.C, Section 244 of Cr.P.C is mandatory for the learned respondent No.2, to hear the complainant and to take all such evidence as may be produced in support of the prosecution and this provision is mandatory and no discretion is left with the Magistrate to decline the complainant for production of any essential document. The learned respondent No.2 understands that mere mention of the FIR in statement of the investigating officer is enough and there will be no effect if the same is not exhibited.
9. That Section 540 Cr.P.C is quite exhaustive and the trial court should be empowered to call or re-call any witness at any stage of the trial if his testimony is considered relevant and is necessary to reach the truth and the provision too is obligatory, The court has wide power to summon the witnesses. The learned court below has not given justifiable reason to reject the petition under section 540 Cr.P.C.
10. That the complainant under section 244 Cr.P.C is competent to produce the evidence and the court is under obligation to receive the same. Moreover any documents desirable for the purpose of trial or proceedings is permissible in law to produce the same in the court.
11. That the ultimate court of the country has laid down in 2002 SCMR Page-468 in case Abdul Hamid Khan V/s Muhammad Nawaz Kasuri which is as under:-
“Production of document---Complainant while making his statement in his private complaint wanted to bring on record a number of documents, but the trial court returned the documents by observing that the same were not relevant---Complainant then filed an application in which 22 documents were listed which he wanted to be received in evidence---Trial court dismissed the said application against which a revision petition filed by the complainant had also been dismissed by the High Court through he impugned judgment---View taken by trial court that the only provision in the Criminal Procedure Code as regards production of additional evidence was S.540 Cr.P.C as such the documents could not be allowed to be produced amounted to refusal to exercise jurisdiction otherwise vested in the Court---“
12. That superior courts of Pakistan have also laid down low on the point in the following judgments:
PLJ-2004 SC Page-642
S. 540 Cr.P.C empowers trial court to call or re-call any witnesses at any stage of trial if his testimony was considered relevant and necessary to reach the truth, High Court was wrong in holding that the trial court is summoning and holding Patwari and Girdawar as court witnesses had filled lacuna of prosecution case. Statements of those witnesses were not only relevant but necessary to decide controversy in question. Section 540 Cr.P.C clearly enabled the trial court to adopt such course.
NLR 2002 Cr. 62
(a) S.540-Calling of additional evidence under section 540 Cr.P.C is not always conditioned on defense for prosecution making an application for the purpose. It is duty of the court to do complete justice between the parties. Carelessness or ignoring one party or other or delay that may result in conclusion of the case should not be a hindrance in achieving the object of doing complete justice by allowing additional evidence.
(b) S.540-The court is bound as second party of section 540 to examine a witness by ignoring technical / formal objection as to do justice and to avoid mis-carriage of justice is obligatory for court.
(c) S-540-The court is under duty to examine additional evidence under section 540 Cr.P.C irrespective of criticism as to filling up lacunas or partiality of the court.
PRAYER
It is therefore, most respectfully prayed that the instant petition may kindly be accepted and the order dated 11-01-10 passed by the respondent No.2 may graciously be set-aside and the application of the petitioner dated 11-01-10 may graciously be allowed.
It is further prayed that in the meanwhile, proceedings before the trial court i.e. respondent No.2 may graciously be stayed.
In the matter of:
Nasir Mehmood son of Muhammad Arif, Caste Qureshi, resident of House No. CB-1204, Khayaban-e-Mira Bukhsh, Tench Bhatta, Rawalpindi.
…Petitioner
VERSUS
1. The State.
2. Mr. Ghulam Mustafa Yazdani, the learned Ellaqa Magistrate, P.S Saddar Berooni, Rawalpindi.
…Respondents
CRIMINAL REVISION UNDER SECTION 435/439-A Cr.P.C FROM THE ORDER DATED 11-01-2010 PASSED BY MR. GHULAM MUSTAFA YAZDANI, LEARNED ELLAQA MAGISTRATE, P.S SADDAR BEROONI, RAWALPINDI WHEREBY HE DISMISSED THE APPLICATION U/S 540 CR.P.C AND PASSED THE IMPUGNED ORDER
Respectfully Sheweth:-
1. That the petitioner is complainant of case FIR No. 340 dated 29-07-08 Offence U/S 506/379/447/148/149 PPC P.S Saddar Berooni, Rawalpindi and the trial is under progress in the court of Learned Magistrate i.e. respondent No.2 and is fixed for 13-01-2010 for recording of statement U/S 342 Cr.P.C.
2. That the petitioner moved an application U/S 540 Cr.P.C for re-summoning the investigating officer (PW3) and for getting the subject matter i.e. FIR bearing No. 340 to be exhibited as the evidence of the I.O (PW3) was recorded on 09-01-2010 but due to the lack of proper assistance at the bar / inadvertently the subject FIR bearing No.340 could not be exhibited which reveals from the statement of the I.O (PW3).
3. That on 09-01-2010 after the recording of evidence of PW3 i.e. Investigating Officer, the matter was adjourned for 11-01-2010 for recording of statement U/S 342 Cr.P.C as the intervening, there was weekly holiday being Sunday.
4. That when it transpired to the petitioner that omission has been done in not getting the FIR exhibited, the petitioner moved an application U/S 540 Cr.P.C for recalling of the investigating officer (PW3) and for getting the subject FIR exhibited which was declined by the learned respondent No.2 vide order dated 11-01-2010. (Copy of challan along with complete order sheet, FIR and application U/S 540 Cr.P.C are annexed herewith for the kind perusal by this August Court)
5. That the order passed by the learned respondent No.2 seems arbitrary, whimsical and not tenable in law. The learned Magistrate without giving any reason branded the essential witnesses whose reexamining and getting the FIR exhibited is necessary for the just decision of the case but the learned Magistrate passed the order in haste that too in a whimsical manner.
6. That it is pertinent to mention here that the whole case of the petitioner being the complainant, is based on the subject FIR mentioned hereinabove and in case the application dated 11-01-10 of the petitioner is not allowed, then the petitioner will suffer an irreparable loss and as the whole case will collapsed in non-existence of the subject matter i.e. FIR No.340.
7. That the re-summoning of the investigating officer is pivotal and essential for the just decision of the case and the impugned order of the learned respondent No.2 is capricious and untenable in the eyes of law by not re-summoning the essential witness that too declining to exhibit the subject matter i.e. FIR. Section 540 Cr.P.C having two parts and the second part of the provision is salutary and mandatory in nature and there is no option left for the learned Magistrate / respondent No.2 except to summon the witness and to get the FIR exhibit therefore, the re-summoning of the witness is essential for the just decision of the case and for ends of the justice.
8. That apart from section 540 Cr.P.C, Section 244 of Cr.P.C is mandatory for the learned respondent No.2, to hear the complainant and to take all such evidence as may be produced in support of the prosecution and this provision is mandatory and no discretion is left with the Magistrate to decline the complainant for production of any essential document. The learned respondent No.2 understands that mere mention of the FIR in statement of the investigating officer is enough and there will be no effect if the same is not exhibited.
9. That Section 540 Cr.P.C is quite exhaustive and the trial court should be empowered to call or re-call any witness at any stage of the trial if his testimony is considered relevant and is necessary to reach the truth and the provision too is obligatory, The court has wide power to summon the witnesses. The learned court below has not given justifiable reason to reject the petition under section 540 Cr.P.C.
10. That the complainant under section 244 Cr.P.C is competent to produce the evidence and the court is under obligation to receive the same. Moreover any documents desirable for the purpose of trial or proceedings is permissible in law to produce the same in the court.
11. That the ultimate court of the country has laid down in 2002 SCMR Page-468 in case Abdul Hamid Khan V/s Muhammad Nawaz Kasuri which is as under:-
“Production of document---Complainant while making his statement in his private complaint wanted to bring on record a number of documents, but the trial court returned the documents by observing that the same were not relevant---Complainant then filed an application in which 22 documents were listed which he wanted to be received in evidence---Trial court dismissed the said application against which a revision petition filed by the complainant had also been dismissed by the High Court through he impugned judgment---View taken by trial court that the only provision in the Criminal Procedure Code as regards production of additional evidence was S.540 Cr.P.C as such the documents could not be allowed to be produced amounted to refusal to exercise jurisdiction otherwise vested in the Court---“
12. That superior courts of Pakistan have also laid down low on the point in the following judgments:
PLJ-2004 SC Page-642
S. 540 Cr.P.C empowers trial court to call or re-call any witnesses at any stage of trial if his testimony was considered relevant and necessary to reach the truth, High Court was wrong in holding that the trial court is summoning and holding Patwari and Girdawar as court witnesses had filled lacuna of prosecution case. Statements of those witnesses were not only relevant but necessary to decide controversy in question. Section 540 Cr.P.C clearly enabled the trial court to adopt such course.
NLR 2002 Cr. 62
(a) S.540-Calling of additional evidence under section 540 Cr.P.C is not always conditioned on defense for prosecution making an application for the purpose. It is duty of the court to do complete justice between the parties. Carelessness or ignoring one party or other or delay that may result in conclusion of the case should not be a hindrance in achieving the object of doing complete justice by allowing additional evidence.
(b) S.540-The court is bound as second party of section 540 to examine a witness by ignoring technical / formal objection as to do justice and to avoid mis-carriage of justice is obligatory for court.
(c) S-540-The court is under duty to examine additional evidence under section 540 Cr.P.C irrespective of criticism as to filling up lacunas or partiality of the court.
PRAYER
It is therefore, most respectfully prayed that the instant petition may kindly be accepted and the order dated 11-01-10 passed by the respondent No.2 may graciously be set-aside and the application of the petitioner dated 11-01-10 may graciously be allowed.
It is further prayed that in the meanwhile, proceedings before the trial court i.e. respondent No.2 may graciously be stayed.
Petitioner
ThroughCounsel:
ThroughCounsel:
Falak Sher Bhatti
Advocate High Court
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