2026 P Cr. L J 472

 2026 P Cr. L J 472

[Lahore (Multan Bench)]

Before Tanveer Ahmad Sheikh, J

MAJID JAVED alias Javed Ali---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 242 of 2025, decided on 25th June, 2025.

Criminal Procedure Code (V of 1898)---

----S. 540---Qanun-e-Shahadat (10 of 1984), Art. 24---Penal Code (XLV

of 1860), S. 302(b)---Qatl-i-amd---Summoning of witness---Scope---

Application filed by the petitioner for summoning of Control Room

Wireless Operator/Moharrar as Court witness was dismissed---

Validity---Petitioner/accused had sought the summoning of Control

Room Wireless Operator/Moharrar along with record/register

regarding Rapts dated 18.05.2023 as Court Witness maintaining that

on the said date, three calls were made at Rescue 15 with the report

that one person inflicted injuries to another person and according to

the 3rd call an information was laid to the effect that one person

gave information that somebody made fire shot at his cousin, who

passed away at hospital---Said witness and record was essential for a

just decision of the case---Petitioner/accused claimed that according

to calls made to Rescue 15 on 18.05.2023, no person was mentioned

as accused, as such its production was necessary for the just

decision of the case---Said documents/Rapts were relevant under

Art.24 of Qanun-e-Shahadat, 1984---Summoning, production and use

of the said documents may make the the existence or non-existence

of a fact highly probable or improbable, as such were essential for

the just decision of the case--- Just" means right, fair and well

founded---Moreover, it is always duty of the Court to make every

effort that no aspect of the case should be left unattended, therefore,

the Trial Court, while passing the impugned order dated 17.05.2025,

refusing to summon the said witness along with record, committed

material irregularity---Trial Court failed to exercise discretion

judiciously and did not record any substantial reason for rejecting

the application, despite the witness being relevant and material---

Revision petition was allowed, in circumstances.

The State v. Fazal Muhammad PLD 1960 SC 387 and Muhammad

Akram v. The State 2003 SCMR 1419 rel.

Muhammad Waqas Amjad for Applicant/Petitioner.

Khawaja Qaiser Butt for Respondent No. 2. Ch. Muhammad Sadiq-ur-Rehman Khan, Addl. Prosecutor General,

Punjab for the State.

ORDER

TANVEER AHMAD SHEIKH, J.---Through this Crl. Revision under

Section 439/435 of Cr.P.C., the petitioner (Majid Javed alias Javed Ali)

has assailed the vires of order dated 17.05.2025, passed by the learned

Addl. Sessions Judge, Multan, whereby application, filed by the

petitioner for summoning of Control Room Wireless Operator /

Moharrar as Court witness regarding Rapt dated 18.05.2023, at 09.00

a.m. to 12.00 a.m. along with register Control Room, filed during the

trial of FIR No.560/2023, dated 18.05.2023, for the offence under

Section 302 of P.P.C, Police Station Lahori Gate District Multan was

dismissed.

2. Facts necessary for the disposal of this revision petition are that

respondent No.2/complainant (Muhammad Danish) got registered a

criminal case against the petitioner with the allegation that on

18.05.2023, at about 09.45 a.m., he committed Qatl-e-Amd of Amir Ali,

brother of the complainant by making fire shot. After registration of

the case, the petitioner was arrested by the police and report under

Section 173 of Cr.P.C. was submitted by the police placing the name of

the petitioner/accused in column No.3 of the said report. After

fulfillment of all the requirements, learned trial Court formally charge

sheeted the petitioner on 01.11.2023, to which he pleaded not guilty

and claimed trial. Statements of 08 PWs were recorded by the learned

trial Court. During the pendency of trial, petitioner moved an

application seeking the summoning of Control Room Wireless

Operator/ Moharrar as Court witness along with Rapts dated

18.05.2025 at about 09.00 a.m. to 12.00 a.m. / register of Control Room,

which was dismissed by the learned trial Court, vide impugned order

dated 17.05.2025. Hence, this revision petition.

3. Learned counsel for the petitioner submitted that impugned order

dated 17.05.2025 is illegal, unwarranted, capricious, fanciful, biased

and against the settled principle of law and liable to be set-aside; that

learned trial Court was vested with the powers to call for record on the

application of aggrieved party under Section 540 of Cr.P.C. read with

Section 94 thereof, but learned trial Court erred in law and facts of the

case while passing the impugned order, hence, the learned trial Court

declined to exercise its jurisdiction, vested in it by law and exercised

the jurisdiction, which was not vested in it by the law. Finally added

that the testimony of aforesaid witness was crucial and necessary for

the just decision of the case as it would clarify material aspects of the

communication or call record pertaining to the incident in question,

however, the learned trial Court dismissed the application without assigning cogent reasons or properly examining the necessity of such

evidence.

4. On the other hand, learned Addl. Prosecutor General, Punjab

assisted by the learned counsel for respondent No.2 / complainant

supported the impugned order and submitted that a person could not

be called as Court witnesses on the whims and caprice of a party.

Further added that the material intended to be brought on record by

summoning the witness is already available on record in shape of

cross-examination, conducted by the petitioner on PW.8/Investigating

Officer of the case.

5. I have heard the arguments of the learned counsel for the parties

and perused the available record with their able assistance.

6. Petitioner/accused has sought the summoning of Control Room

Wireless Operator / Moharrar along with record/register regarding

Rapts dated 18.05.2023 as Court witness maintaining that on the above

date, three calls were made at Rescue 15 with the report that one

person inflicted injuries to another person and according to the 3rd

call an information was laid to the effect that one Zeeshan gave

information that somebody made fire shot at his cousin, who passed

away at Nishtar Hospital, Multan; above said witness and record was

essential for a just decision of the case.

7. In the case in hand Section 540 of Cr.P.C has to be read along with

Section 94 (1) and Section 265-F (7) thereof. All the above said

provisions are being produced below for the facility of reference:-

Section 94: Summon to produce document or other thing. (1)

Whenever any Court, or any officer in charge of a police station

considers that the production of any document or other thing is

necessary or desirable for investigation, inquiry, trial or the

purposes of any other proceeding under this Code by or before

such Court or officer, such Court may issue a summon, or such

officer a written order, to the person in whose possession or

power such document or thing is believed to be, requiring him

to attend and produce it, or to produce it, at the time and place

stated in the summons or order.

Section 265-F (7): If the accused or any one or several accused, after

entering on his defence, applies to the Court to issue any process

for compelling the attendance of any witness for examination or

the production of any document or other thing, the Court shall

issue such process unless it considers that the application is

made for the purpose of vexation of delay or defeating the ends

of justice such ground shall be recorded by the Court in writing. Section 540 of 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 or recall and

re-examine any such person if his evidence appears to it

essential to the just decision of the case.

8. Section 94 of Cr.P.C. relates to the procedure for the production of

any document or other thing necessary or desirable for the purpose of

investigation, inquiry or trial or other proceedings. It empowers the

Investigating Officer or the Court to issue a summon or the order

requiring a person, in whose possession the document was lying, to

produce the same at any stage of investigation, inquiry or trial.

9. Section 265-F (7) of Cr.P.C. envisages that an accused after

entering into his defence, may apply to the Court for procuring the

attendance of any witness for examination or any document or thing

and the Court shall issue such process unless it appears to the Court

that the application has been made for causing the delay or for

defeating the ends of justice.

10. The word shall used in the said provision implies mandate

meaning thereby that summoning of witnesses as suggested by

accused is a rule, whereas its refusal under the circumstances shall be

an exception. Violation of the said provision of law is an irregularity

not curable under the law and the order shall be liable to be set-aside.

11. So far as Section 540 of Cr.P.C. is concerned, it empowers the

Court to summon any person as a witness at any stage of inquiry, trial

or other proceeding, if his evidence appears to be essential for the just

decision of the case. It is well-established that this provision is

intended to advance the cause of justice and enable the Court to

prevent failure of justice by bringing every relevant piece of evidence

on record. It has been held by the Hon ble Supreme Court in case The

State v. Fazal Muhammad (PLD 1960 SC 387) that

The purpose of Section 540 Cr.P.C. is to enable the Court to obtain

the best possible evidence for the just decision of the case, and

refusal to exercise such power where the evidence is relevant

would amount to miscarriage of justice.

12. Similarly, in case of Muhammad Akram v. The State (2003 SCMR

1419), it was observed as under:

The trial court is not only empowered but obligated under Section

540 Cr.P.C. to summon any witness whose evidence appears essential for a just decision, even if such an application is made

by the accused or prosecution.

13. Petitioner/accused claimed that according to calls made to

Rescue 15 on 18.05.2023, no person was mentioned as accused, as such

its production is necessary for the just decision of the case. In my

humble view, above said documents/Rapts were relevant under Article

24 of Qanun-e-Shahadat, 1984, which reads as under:-

Article 24. When Facts not otherwise relevant become relevant.

Facts not otherwise relevant are relevant:-

(1) If they are inconsistent with any fact in issue or relevant fact;

(2) If by themselves or in connection with other facts, they make the

existence or non-existence of any fact in issue or relevant highly

probable or improbable.

15. Summoning, production and use of the above said documents

may make the existence or non-existence of a fact highly probable or

improbable, as such was essential for the just decision of the case. The

just means right, fair and well founded. It is always duty of the Court

to make every effort that no aspect of the case should be left

unattended, therefore, the learned trial Court, while passing the

impugned order dated 17.05.2025, refusing to summon the above said

witness along with record committed material irregularity . The

learned trial Court failed to exercise discretion judiciously and did not

record any substantial reason for rejecting the application, despite the

witness being relevant and material.

16. In view of above discussion, the revision petition is accepted.

Resultantly, impugned order dated 17.05.2025 is set aside. The learned

trial Court is directed to summon the Control Room Wireless Operator/

Moharrar as Court witness along with record of Rapts dated 18.05.2025

at about 09.00 a.m. to 12.00 a.m. of Control Room as a witness under

Section 540 Cr.P.C., and to record his testimony in accordance with law.

Let a copy of this order be sent to the learned trial Court for immediate

compliance.

JK/M-164/L Revision allowed.