IN THE HIGH COURT OF SINDH, KARACHI
Cr.Misc.A.No.232 of 2014
Azhar Ahmed Batla
M/s. I.G.I. Finex Securities Limited and another
Present: Mrs. Justice Ashraf Jahan.
Date of Hearing : 18.11.2014
Applicant : Through Mr. Mehdi Shah, Advocate.
Respondent No.1. : Through Mr. Aamir Saleem,
State : Mr. Shahzado Saleem, A.P.G.
O R D E R
MRS. ASHRAF JAHAN, J.:- Applicant/accused Azhar Ahmed Batla, facing trial in crime No.148/2012 under section 489-F, P.P.C of P.S Boat Basin, has filed the present application under section 561-A Cr.P.C, challenging the order dated 21.04.2014, passed by learned IIIrd Additional Sessions Judge, Karachi (South) (hereinafter referred to as the Appellate Court) in Criminal Revision No.11/2014.
2. The relevant facts necessary for disposal of this application are that M/s. I.G.I. Finex Securities Limited, through their authorized company secretary lodged F.I.R on 24.03.2012 against the present applicant/accused that he had issued three cheques on different dates in the name of company, which were bounced by the bank, therefore, F.I.R was lodged against him under section 489-F PPC. The case was challaned before the trial Court and after framing of charge it was kept for evidence of complainant side on 26.01.2013, examination-in-chief of Sher Afghan company secretary was recorded, while at the request of learned defense counsel cross examination was reserved, but thereafter on other dates cross examination could not be conducted on one or the other pretext. Meanwhile, the said company secretary Sher Afghan resigned from the company M/s. I.G.I. Finex Securities Limited, therefore, an application under section 540 Cr.P.C was moved on behalf of complainant to appoint Syed Mohammad Farhan for the purpose of evidence in this case. The trial Court vide order dated 15.02.2014 dismissed the said application, the above order was assailed before the learned appellate Court, who vide order dated 21.04.2014 allowed the revision and set aside the order dated 15.02.2014, applicant being aggrieved has challenged this order vide present application.
3. I have heard learned counsel for the parties. It is contended by learned counsel for the applicant that order dated 21.04.2014 has been passed without giving any reasoning, the learned Appellate Court had ignored the fact that the complainant Sher Afghan had got recorded his examination-in-chief and produced the relevant record, therefore, such documents cannot be exhibited once again. Further only a well conversant authorized person can come in the witness box at the place of original complainant to verify his signatures or any writing and to produce the relevant record in the Court but in the present case as the original complainant has already produced all the relevant record and the present authorized person is not well conversant with the facts of this case, therefore, at this stage he cannot be allowed to adduce the evidence in this case. In support of his contentions, he has relied upon the cases of Abdul Khaliq v/s. Ansar Mehmood and 2 others (2009 YLR 486), Muhammad Saleem v/s. Muhammad Azan and another (2010 SCJ 672). Lastly he has contended that section 540 Cr.P.C cannot be used to fill up the lacunas in the case of prosecution.
4. On the other hand, it is contended by learned counsel for respondent No.1 that cheques were issued in the name of company and not in the name of Sher Afghan. The evidence of complainant was recorded on 26.01.2013 and cross examination was reserved at the request of defence counsel, again witness was present before the Court on 07.02.2013, but there was an adjournment application from the accused side and thereafter also the complainant has appeared before the Court on few dates but for one reason or another his cross examination was not conducted. Meanwhile, he had resigned from the company and thereafter the company deputed other person to adduce his evidence before the Court essential for the just decision of this case, therefore, present application merits no consideration and is liable to be dismissed.
5. Learned A.P.G has also supported the case of respondent No.1 and stated that the company secretary was not the eye witness of the incident and company can authorize any other person in this behalf to adduce the evidence before the Court of law.
6. I have considered the arguments and have perused the case record. To appreciate and address the issue raised, it would be relevant to keep in mind the scope of section 540 Cr.P.C, which vests powers in the Court to examine any person as witness, whose evidence is essential for a just decision of the case. The said provision of law reads as under:
“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.”
7. The scope of section 540 Cr.P.C is discussed in number of cases and there is sufficient law available in this regard, reference in this respect is made to the case of Nawabzada Shah Zain Bugti and others v/s. The State (PLD 2013 S.C 160), the relevant portion for the sake of reference is reproduced here, which reads as under:
“10. The Court has also to keep in mind that in trying a case it has to find out the truth to render a judgment in accord with canons of justice. If it finds that the investigation is defective, it cannot just sit idle as a timorous soul and has to exercise all the enabling provisions under the law including section 540, Cr. P.C. to discern the truth. For the purpose of this provision the Court even without any formal application from prosecution or accused, can summon any person as witness or examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined. In Ansar Mehmood v. Abdul Khaliq (2011 SCMR 713), the judgment of the High court was reserved and that of the trial Court restored which had allowed examination of additional evidence in terms of section 540, Cr.P.C. While doing so, the Court commented on the ambit of this provision in terms as follows:--
“5. 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 had to Muhammad Murad Abro v. the State through A.G. Balochistan (2004 SCMR 966), wherein it was held that provisio 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 Painda Gul and another v. 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. However, while exercising discretion it must guard itself against the exploitation of this power by a litigant party and keep in view the guiding principle, what the ends of justice demand. Cases titled as Dildar v. State through Pakistan Narcotics Board, Quetta (PLD 2001 Supreme Court 384) and the state v. Muhammad Yaqoob (2001 SCMR 308), lay down guide. Observations made in 2001 SCMR 308, are quoted:-
“It is thus manifest that calling of additional evidence is not always conditioned on the defence or prosecution making application for this purpose but it is the duty of the Court to do complete justice between the parties and the carelessness or ignorance of any party or the other or the delay that may result in the conclusion of the case should not be a hindrance in achieving that object. It is salutary principle of judicial proceedings in criminal cases to find out the truth and to arrive at a correct conclusion and to see that an innocent person is not punished merely because of certain technical omission on his part or on the part of the Court. it is correct that every criminal case has its own facts and, therefore, no hard and fast rule criteria for general application can be laid down in this respect but if on the facts of a particular case it appears essential to the Court that additional evidence is necessary for just decision of the case then under second part of the section 540, Cr.P.C., it is obligatory on the Court to examine such a witness ignoring technical/formal objection in this respect as to do justice and to avoid miscarriage of justice.”
11. In Shahbaz Masih v. The State (2007 SCMR 1631), a similar view was reiterated by the Court and it was held as under:--
7. ………Court enjoys full, powers to summon and, examine any person as a witness at any stage of trial; rather it is imperative for the Court within terms of section 540, Cr.P.C to summon and examine a person when evidence of such person appears to the Court essential to do the just decision of the case. Also, the Court can examine any person in attendance though not called as a witness. The underlying object, always, is to reach truth ……”
8. The minute reading of aforementioned provision of law and the case law cited above indicates that it gives wide powers to the Courts to examine any witness at any time or at any stage of the case, whose evidence is essential for just decision. When the facts of this case are looked into with this wide scope of section 540 Cr.P.C, it appears that learned Appellate Court has rightly allowed such request. Furthermore, the perusal of record also reveals that charge in this case was framed on 23.06.2012, thereafter on four dates of hearing i.e. 18.07.2012, 31.07.2012, 09.07.2012 and 12.12.2012 complainant was present but his evidence was not recorded on one or the other pretext and finally his evidence was recorded on 26.01.2013 on that date also cross examination was not conducted at the request of defence counsel. Again on the subsequent date the complainant alongwith P.Ws was present, but matter was adjourned at the request of learned counsel for the accused, thereafter from 06.07.2013 to 22.01.2014 the Presiding Officer of the Court was on leave, meanwhile on 07.12.2013 counsel for the complainant filed application under section 540 Cr.P.C on the ground that Sher Afghan has resigned from his services, therefore, prosecution may be allowed to examine the other authorized person on behalf of company. On 29.01.2014 case was transferred to some other Court and finally on 21.04.2014 application filed on behalf of the complainant was dismissed. The above facts clearly reveal that authorized Secretary of Complainant side Mr. Sher Afghan has attended the Court on many dates even after his examination-in-chief, but his cross was not completed and it was adjourned repeatedly at the request of learned defence counsel and now when Sher Afghan has resigned from the company, the company remained with no option except to depute some other person to adduce the evidence. The perusal of F.I.R further reveals that in this case dishonoured cheques worth Rs.1,20,80,000/- were purportedly issued by the present applicant/accused in favour of company.
9. So far as the contention of learned counsel for the applicant that second authorized person cannot be allowed to fill up the lacunas in the case of the prosecution is concerned, it is totally misconceived as the evidence on behalf of M/s. I.G.I. Finex Securities Limited is essential to meet the ends of justice. The case laws referred by the learned counsel for the applicant are distinguishable and not applicable to the facts of the present case. Order passed by the learned Appellate Court is based on proper appreciation of the facts of case and relevant provision of law, therefore, calls for no interference. Accordingly, the present criminal Miscellaneous Application is dismissed.
Announced on ______________.