Law: Criminal Procedure Code (V of 1898)

Section: 435,540

Law: Pakistan Penal Code, 1860

Section: 34,324

(a) Criminal Procedure Code (V of 1898)--- ----S. 540---Material witness, summoning of---Powers of court---Object and scope---If it appeared to the court that evidence of a person was essential to the just decision of the case, then there was no discretion to prevent such a person from being examined---Power under S. 540, Cr.P.C. to summon a witness may either be exercised suo motu or on an application---In the present case, evidence of the proposed witness seemed to be essential as she was the sole witness of the incident---Revision petition was allowed in circumstances. Muhammad Khan v. The State 2003 PCr.LJ 1778; Muhammad Usman and 2 others v. The State 1991 MLD 17 and Abdul Khaliq v. Ansar Mehmood 2009 YLR 486 ref. Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 rel. (b) Criminal Procedure Code (V of 1898)--- ----S. 540---Material witness, summoning of---Interpretation and principles of S. 540, Cr.P.C. summarized. Principles under S. 540, Cr.P.C. are summarized as under:-- i. The power cannot be used either to advance the case of the prosecution or that of the defence. ii. It is obligatory upon the Court to allow the production and examination of evidence, where it is essential for the just decision of the case. iii. Once it appears to the Court that the evidence was essential for a just decision then delay in moving the application was not relevant. iv. The Court has suo motu powers to exercise jurisdiction under the provisions if it appears to it that doing so would be essential for a just decision. v. The application under section 540 of Cr.P.C. cannot be dismissed summarily by holding that either the witness was not mentioned in the Challan or that it was belated or it might fill up lacuna in the prosecution case, unless the totality of material placed before the Court was considered to find out whether exercising powers would be essential for a just decision of the case. vi. The Court has to form its opinion as to whether the evidence of any person is essential to the just decision and any order passed ought to reflect an application of a judicial mind. vii. The Court is vested with wide powers and the same can be exercised at any stage of the case.…

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