Law: Criminal Procedure Code (V of 1898)

Section: 540

Law: Evidence Act (I of 1872)

Section: 43

(a) Criminal Procedure Code (V of 1898) S. 540 Witness Court witness-Section confers unlimited powers on Court to summon any person as Court witness if his evidence essential to just decision of case-Persons summoned as Court witnesses not cited as eye-witnesses of occurrence by either party-Police although joining such witnesses in investigation and recording their statements yet omitting their names from calendar of witnesses--Court; held, justified in summoning such persons as Court witnesses: Section 540 of the Code of Criminal Procedure is manifestly in two parts, the first part gives a purely discretionary authority as the word used therein is "may" while the second part is mandatory as the word "shall" has been used to emphasise its import and binds the Court to examine any witness if his evidence is essential to the just decision of the case and it is not left to the Court to rely on a mere presumption under section 114(g) of the Evidence Act that the evidence which could be and is not produced, would, if produced, be unfavourable to the person withholding it. Muhammad Ashraf v. Zafar Mahmood and others P L 'D 1967 Lah. 1045 distinguished. Syed Ali Nawaz Gardezi .v. Lt.-Col. Muhammad, Yusuf P L D 1963 S C 51 and Remjeet's case A I R 1958 All. 439 rel. (b) Evidence Act (I of 1872) S. 43-Evidence-Police joining persons from locality in investigation and recording their statements, nevertheless, withholding such witnesses by omitting their names from calendar of witnesses-Such witnesses, however, produced by opposite party in cross-complaint-Consideration of evidence of such witnesses In challan case, held, barred .by S. 43 or Evidence Act, 1872. (c) Criminal trial Practice and procedure-Police recording statements of witnesses during investigation-Evidence of such witnesses, held, could not be withheld from Court. Date of hearing : 19th February 1970   JUDGMENT This is a petition under section 435/439, Cr. P. C. for the revision of an order passed by Raja M. Ayub, Corporation Magistrate, Lahore, on the 10th of January 1970, summoning Mr. Tayyab Siddiqi, Advocate, and six others as Court witnesses under section 540 of the…