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Petitioner: MUHAMMAD ASHRAF VS Respondent: StateHonorable Justice Sardar Tariq MasoodCh. Humayun Rashid
2011 Y L R 2069 [Lahore] Before Sardar Tariq Masood, J MUHAMMAD ASHRAF---Petitioner Versus THE STATE and another---Respondents
Criminal Revision No.109 of 2011, decided on 18th February, 2011.
(a) Criminal Procedure Code (V of 1898)---
----Ss.540---Penal Code (XLV of 1860), S.302---Qatl-e-amd---Examination of material witness---Medical Officer while conducting post mortem examination of the deceased had stated the wrong date as 25-5-2010 instead of 26-5-2010 on the report---Said Doctor was examined as a prosecution witness at the trial and he was cross-examined by the Defence Counsel---Thereafter counsel for complainant submitted an application under S.540, Cr.P.C. for re-examination of the Doctor as according to the hospital record the post-mortem examination was conducted on 26-5-2010---Said application had been allowed by the Trial Court, vide impugned order---Section 540, Cr.P.C. had not only authorized the court but had made its bounden duty to call or re-examine as a witness a person whose evidence appeared to it to be essential for just decision of the case---Trial Court could not be expected to hold criminal trials like dummies---Action of Judicial Officers with regard to the trial should be actuated by no other motive but a desire to do just decision between the parties and while doing so, the justice should not only be done but it should be seen to be done---Trial Court while going through the whole record had rightly allowed the complainant to re-examine the Doctor---Accused would avail full opportunity to cross-examine the said witness and no prejudice would be caused to him, because the Doctor would be re-examined according to the record of the hospital---Impugned order did not suffer from any illegality or infirmity---Revision petition was dismissed in limine accordingly.
(b) Criminal Procedure Code (V of 1898)---
----S.540---Power to summon material witness or examine persons present---Scope and extent---Section 540, Cr.P.C. has two parts; First part is discretionary whereas the second part is mandatory in nature---First part provides discretionary power to the court to summon any person as a witness suo motu or on an application of any party, but according to second part the power to summon, examine or re-examine any person as a witness ought to be exercised, if his evidence is essential for just decision of the case---Solitary purpose of the judicial proceedings in Criminal cases is to find out truth for arrival at a correct conclusion---Second part of S.540, Cr.P.C. makes it obligatory for the Court to examine or re-examine any witness ignoring the technical and formal objections---Trial Court has been vested with the jurisdiction to re-examine any witness and the only requirement for re-examining the witness is that his examination should be essential for the just decision of the case. Ch. Humayun Rashid for Petitioner.
ORDER
SARDAR TARIQ MASOOD, J.---Through this revision petition Muhammad Ashraf petitioner has challenged the order dated 12-2-2011 passed by the ASJ Okara through which learned Judge allowed the petition filed by the complainant for re-examining of Dr. Syed Ijaz Ahmad P.W.7. 2. Learned counsel for the petitioner contends that Dr. Syed Ijaz Ahmad was examined on 25-1-2011 and he categorically stated that he conducted the post mortem examination on 25-5-2010 at 9-30 a.m. Learned counsel further contends that the same date and time is mentioned in the post mortem examination report but subsequently the complainant submitted an application that the said date was inadvertently written in the post mortem examination report and actually the post mortem examination was conducted on 26-5-2010 at 9-30 a.m. and the same is evident from the record of the hospital. Further contends that the learned ASJ has ignored the principles laid down by the honourable apex Court; that under Article 133 of the Qanun-e-Shahadat Order, 1984 re-examination can only be done if a new matter is referred in the cross-examination; that the learned trial Judge while allowing said petition for re-examination tried to fill up the lacunas left by the prosecution and section 540, Cr.P.C. is not meant to cover up the deficiency. 3. Heard. 4. According to the prosecution case the occurrence had taken place on 25-5-2010 at 8-00 p.m. and the F.I.R. was chalked out at 9-30 p.m. The inquest report was prepared after the registration of the F.I.R. in which it is specifically mentioned in Column No.3 that the police received information about the occurrence on 25-5-2010 at 8-45 p.m. It is worth mentioning here that complaint (Fard Bayan) was sent by the Investigating Officer to the Police Station on 25-5-2010 at 8-45 p.m. for formal registration of F.I.R. P.W.7 Syed Ijaz Ahmad C.M.O. while conducting the post mortem examination noted the date and time as 25-5-2010 at 9-30 a.m. The occurrence had taken place on 25-5-2010 at 8-00 p.m. It is out of question that on the same day at 9-00 a.m. the post mortem examination was conducted. Obviously the same was conducted on the following day i.e. 26-5-2010 at 9-30 a.m. The statement of the said doctor was recorded by the learned trial Court and it was cross-examined by the learned defence counsel. Thereafter the counsel for the complainant submitted an application under section 540, Cr.P.C. and prayed that said Doctor be re-examined as according to the hospital record the post mortem examination was conducted on 26-5-2010 at 9-30 a.m. and the Doctor had wrongly or inadvertently mentioned the same as 25-5-2010 at 9-30 a.m. which is otherwise is not possible as the occurrence had taken place on 25-5-2010 at 8-00 p.m. The learned trial Court after hearing both the parties also referred the statement of P.W.8/Investigating Officer who clarified that the post mortem examination was conducted on 26-5-2010. It was the bounden duty of the trial Court to resolve the said controversy after going through the record of the hospital in order to reach to a just conclusion of the case. Section 540, Cr.P.C. reads as follows:-- 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." Section 540, Cr.P.C. has two parts. First part is discretionary in nature whereas the second part is mandatory. Part first provides discretionary power to the Court to summon any person as a witness suo motu or on an application of any party but according to the second part of said section the power to summon, examine or re-examine any person as a witness ought to be exercised if his evidence is essential for just decision of the case. The solitary purpose of the judicial proceedings in criminal cases is to find out truth for arrival at a correct conclusion. Under the second part of section 540, Cr P.C. it becomes obligatory for the Court to examine or re-examine any witness ignoring the technical and formal objections. The trial Court has been vested with the jurisdiction to re-examine any witness and the only requirement for re-examining the witness is that his examination should be essential for the just decision of the case. 5. The argument of learned counsel that the trial Court while allowing said application for re-examination tried to fill up the lacunas left by the prosecution is without force. It is not the intention of law that a person who has to give a decision has to sit entirely un concerned during the proceedings like an unthinking statute. The position of person who presides over a Court wholly as a Judge is just as important as any of the parties and, in certain respect, his responsibilities are much greater than an advocate who represents one party or the other. The power of a Court regarding calling and re-examining of a witness can not be curtailed. The position in law therefore, is that section 540, Cr.P.C. not only authorises the Court but made its bounden duty to call or re-examine as a witness a person whose evidence appears to the Court is essential to the just decision of the case. The argument of learned counsel that the trial Court had wrongly allowed the application of the complainant to re-examine the said Doctor, as the trial Court is to keep both the sides on equal footing is concerned, the said argument is without any logic because the Court in order to reach to a just decision of the case had ample power to examine or re-examine any witness during a trial. Learned Judge while going through the whole record had rightly allowed the application of the complainant to re-examine the said doctor. As it is not expected from Judicial Officers to hold criminal trials like dummies or only mere like referees in boxing bouts by leaving it to the contestants to do what they like and should not interfere unless they violate the rules of the game. The action of the Judicial Officers with regard to the trial should be actuated by no other motive but a desire to do just decision between the parties and while doing so, the justice should not only be done but it may be seen to be done. It is also a fact that while re-examining the said witness, the defence i.e. the petitioners side would avail full opportunity to cross-examine the said witness and no prejudice would be caused to the petitioner/accused party because the Doctor/witness will be re-examined according to the record of the hospital. 6. In view of what has been discussed above, I find no infirmity or illegality in the findings recorded by the learned trial Court in the impugned order, therefore, this petition having no force is dismissed in limine. N.H.Q./M-122/L Petition dismissed.