ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Constt: Petition No.D-1285 of 2016.

DATE	ORDER WITH SIGNATURE OF JUDGE

Present

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Amjad Ali Sahito.

Date of hearing. 07.08.2018.

Date of decision. 07.08.2018.

Petitioner. Through Mr Ghulam Shabir Shar, Advocate.

Respondents. Through Mr. Iftikhar Ali Arain, Advocate.

The State. Through Mr. Zulfiqar Ali Jatio, Addl.P.G.

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AMJAD ALI SAHITIO, J:- Through instant petition, the petitioner has assailed the order dated 22.02.2016 passed by learned District and Sessions Judge/Judge Anti Terrorism Court Sukkur, in Special Case No.15/2013 State v. Mushtaque Ahmed and others registered at P:S, Pano Akil, offence under Section 365-A, 344,148,149,114 PPC and 7ATA, 1997, whereby the learned Judge has allowed the application u/s 540 Cr.P.C for calling the witness Inspector Altaf Hussain Burdi being Court witness.

2. The brief facts of the prosecution case are that the petitioner Mst. Najma lodged FIR No.55/2013 at P:S, Pano Akil stating therein that on 17.06.2012 she, her son Hassan Ali and Mst. Bahin were going to Pano Akil for shopping. At about 2:00 p.m when they reached at Tube well of dirty water near Habib Cotton Factory, two Cars stopped near them and accused persons, namely, Mushtaque Ahmed, Muhammad Ishaq armed with KKs, Khaliq Rahman, Akber Ali, Muhammad Hanif armed with pistols and three unidentified persons got down from the Cars. Accused Akber Ali directed the other accused to kidnap the petitioner and her son. Due to force of weapons the petitioner party remained silent and the accused persons put the petitioner in Mahran Car and her son in other Car went away. Mst. Bahin narrated the above facts to Tufail Ahmed. After 20 days the accused persons released the petitioner and directed her to pay Rs.20,00,000/- and get released her son. The petitioner approached the accused persons but they did not release her son, hence she filed an application before learned Ex-Officio Justice of Peace and after seeking directions lodged the FIR.

3. After submission of challan the charge was framed by learned trial Court on 12.12.2014. The prosecution examined five witnesses and then closed its side. The respondents filed an application u/s 540 Cr.P.C before learned trial Court for summoning Inspector Altaf Hussain Burdi as Court witness, as he had conducted re-investigation of the case, which was allowed, hence this petition.

4. Heard learned counsel for the parties and perused the record. The perusal of record reflects that the police after completing investigation of the case submitted final report and the learned trial Court observed all legal formalities and framed the charge. Thereafter, the prosecution examined five witnesses and closed its side. Learned ADPP as well as learned trial Court did not feel it necessary to examine/summon Inspector Altaf Hussain Burdi as prosecution/Court witness but on the application of respondents, learned trial Court passed the impugned order for calling him as Court witness.

5. There is no cavil to the proposition that u/s 540 Cr.P.C Court has ample power to summon any person as witness at any stage of inquiry, trial or other proceedings, if his evidence appears to it essential for the just decision of the case because the object of the section is to defend the justice and not to defeat the same. In the instant case name of Inspector Altaf Hussain Burdi does not appear in the list of witnesses in the charge sheet as he conducted re-investigation after submission of challan and submitted report in favour of the respondents, therefore there was no need to summon him as Court witness, however if the prosecution or the respondents feel it necessary to examine him, they have unfettered right to call him as prosecution or defence witness and the other party has right to cross examine him but they cannot ask the Court to call such person as Court witness as it is the prerogative of the Court to summon any person as Court witness but it is also settled law that no one can be called by the Court to fill the lacuna of the prosecution or the defence.

6. For what has been discussed above instant petition was allowed and impugned order dated 22.02.2016 passed by learned trial Court was set-aside by our short order dated 07.08.2018 and above are the reasons of our short order.

J U D G E

J U D G E