IN THE HIGH COURT OF SINDH, AT KARACHI
Cr. Revision Application No. 174 of 2013
Kamran Niaz Ahmed ………………...….………………………….. Applicant
Versus
The State & another …………..………………………………….Respondents
Date of hearing : 25.02.2014
Date of order : 25.02.2014
Mr. Abdul Hakim Rajput, advocate for the applicant
Mr. Shahzado Saleem, APG for respondent No.1
Nemo for respondent No.2
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O R D E R
Abdul Maalik Gaddi, J Through this Criminal Revision Application, the applicant has assailed the legality and propriety of the order dated 21.10.2013 passed by the learned IInd Additional District & Sessions Judge Karachi Central in Criminal Petition No.62 of 2010 filed by the applicant, whereby the learned trial Court after hearing the parties dismissed the application under Section 540 Cr.P.C filed by the present applicant, hence this revision application.
2. Brief facts necessary for the disposal of this Criminal Revision Application are that the present applicant filed Complaint under Section 3 to 5 & 7 (1) of Illegal Dispossession Act (XI of 2005) against the respondent No.2 alleging therein that on 9.7.2008 when the father of the complainant locked the doors of the property as mentioned in the complaint, the respondent No.2 alongwith his companions forcibly occupied the premises of the applicant.
3. I have heard the learned counsel for the applicant, learned APG and have gone through the record, whereas none present on behalf of respondent No.2 though served as per order sheet dated 29.11.2013 and 17.12.2013.
4. It is stated by the learned counsel for the applicant that during proceedings of the case before the learned trial Court, he filed an application under Section 540 Cr.P.C stating therein to summon Nadeem Sulman, A.S.I., Police Station Sharifabad, Karachi Central as a witness and allow him to produce detail report dated 8.2.2010 and also recall and re-examine the applicant and P.W. Niaz Ahmed to produce certain documents but the learned trial Court without any legal justification turn down his request and passed the impugned order. He has further submitted that the case is still pending before the learned trial Court and the evidence of ASI Nadeem Sulman is very essential for just decision of the case.
5. Learned APG has not opposed the application.
6. To appreciate the issue raised it would be pertinent to keep in mind the scope of section 540 Cr. P.C. which vests powers in the Court to examine anyone as a witness which according to it is essential for a just decision of the case. The said provision reads as follows:-
“540 Cr. P.C. 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.”
7. A close reading of afore-mentioned provision indicates that it gives rather wide powers to the Court to examine any witness as a court witness at any stage of the case. It enables the Court rather in certain situation imposes a duty on it to summon witnesses who could not otherwise be brought before the Court.
8. Bare reading of section 540, Cr. P.C. transpires that where an evidence is essential for just decision of the case, it is obligatory upon the Court to allow its production and examination. Examining the law on the subject, reference can be made to the case of Muhammad Murad Abro Vs. The State through A.G. Balochistan (2004 SCMR 966), wherein it was held that provision of Section 540 Cr. P.C. is to enable the Court to go at the truth of the matter, so as to come to a proper conclusion. In the case under trial, it is obligatory to summon a person whose evidence is essential for just decision of the case. Similar view was taken in the case of Painda Gul and another Vs. The State and another (1987 SCMR 886), with addition that the Court has widest powers under Section 540 Cr.P.C and can summon a witness for examination at any stage of the case.
9. I have perused the impugned order which shows that the learned trial Court dismissed the application of the applicant on the ground that side of the complainant for evidence was closed but Section 540 Cr.P.C provides widest powers to summon a witness for examination at any stage of the case in appropriate cases.
10. Perusal of record shows that in this matter, case was fixed for final arguments but according to the applicant during proceedings before the trial Court, he could not place on record material documents as the same was not in his possession but the same were in possession of ASI Nadeem Sulman of P.S. Sharifabad, Karachi, therefore, to my mind the evidence of ASI Nadeem Sulman appears to be essential to arrive at correct conclusion in the case.
11. From perusal of record, it appears that complainant Kamran Niaz and P.W. Niaz Ahmed have already been examined in this case, therefore, it would not be proper to re-call and re-examine them at this stage of the case. However, as observed above, that the evidence of ASI Nadeem Sulman as stated by applicant appears to essential in the case and if he is examined in this case, no prejudice would be caused to the other side as the other side would be at liberty to cross-examine him. I, accordingly in view of above reasons set-aside the impugned order passed by the learned trial Court and allow this Criminal Revision Application with direction to the trial Court to examine ASI Nadeem Sulman of P.S. Sharifabad, Karachi after due opportunity to the other side for cross-examining him and then decide the case as per law. Needless to observe, it would be open for the other side to raise all the pleas during the course of cross-examination and arguments including the admissibility of some piece of evidence.
This Criminal Revision Application stands allowed in the above terms.
J U D G E