Form No.

HCJD/C-121

ORDER SHEET
IN THE LAHORE HIGH COURT
JUDICIAL DEPARTMENT

WRIT PETITION NO. 20527 OF 2015.

Malik Sheraz Zafar Vs. The State, etc.

Sr. No. of order/ Date of order/ Order with signature of Judge, and that of parties or
proceeding proceeding counsel, where necessary.

04.09.2015 M/s Muhammad Ehsan Bhoon and Chaudhry

Rab Nawaz, Advocate for the petitioner.
Mr. Muhammad Nasir Chohan, Additional
Advocate General Punjab.
Mian Ghulam Rasool, Advocate for the
respondents.

The captioned Constitutional Petition has been

preferred on behalf of the petitioner to assail the legality of

impugned order dated 26.2.2015 through which the learned

Additional District Judge Faisalabad dismissed petitioners criminal

revision against the impugned order dated1.11.2014, whereby, the

Judicial Magistrate Section-30, Samundri, dismissed petitioners

application moved in terms of section 540 Cr.P.C., soliciting

permission for summoning witnesses and to exhibit certain

documents.

2. Brief facts of the case are that the petitioner lodged

F.I.R.No.383 dated 18.06.2011, under sections 420, 467 and 471

PPC, at Police Station City Samundari, District Faisalabad, stating

that on 06-01-2000 accused Bilqees Bibi, Syeda Jillani

(respondents No.5 and 6) and their deceased sister namely Jameela

Begum were offered plot No. 80 by CDA Islamabad in the Orchard

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Scheme Murree Road Islamabad in lieu of their previous allotment.

It was further submitted that Mst.Jameela Begum deceased mother

of the accused Zafar Iqal, respondent No.8, died on 05-05-1999

before the plot was offered. But the accused Zafar Iqbal respondent

No.8, in connivance with his co accused real aunts respondents No.

5 and 6 did not disclose the factum of demise of Mst.Jamila Begum

so that they were able to maneuver the allotment without any legal

hurdles. Respondent No.8 Zafar Iqbal then prepared a forged

General Power of Attorney of his mother Mst.Jameela Begum,

respondents No.5 and 6 in his favour even though his mother was

not alive at that time. And from the aforesaid plot, a portion was

sold to the petitioner fraudulently against consideration of huge

amount, but the plot could not be transferred in favour of the

petitioner causing him serious and substantial financial loss.

3. The learned counsel for the petitioner has argued

before this Court only to the extent of placing on record some

important documents germane for just and fair adjudication of the

lis. The counsel argued that the trial court erred in law by not

allowing the petitioner to exhibit the important documents,

inasmuch as, the whole case of the petitioner revolves around the

judicial determination of these crucial documents. Once these

documents are allowed to be placed on record, the fraud committed

by the respondents will be proved, and if these documents are not

permitted to be exhibited, then the petitioner will not be able to

prove the elementary issue of serious fraud committed by the

accused of the F.I.R. The learned counsel further argued that as the
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accused/respondents are very influential, therefore, the Police

refused to place these crucial and vital documents on record. The

learned counsel further argued that all these documents solicited to

be exhibited are duly mentioned in the F.I.R and in the statements

of the prosecution witnesses, therefore, the court could not have

refused to exhibit per se admissible documents. The learned

counsel elaborated that at the time of recording the evidence, the

questioned documents were not allowed to be exhibited by the trial

court on the ground that they were the photo copies, and at that

time certified copies were not available, which have now become

available, but the trial court arbitrarily and summarily refused to

allow the petitioner to exhibit the said documents causing

irreparable loss and grave miscarriage of justice. Hence, it was

prayed that this petition be accepted with the consequence that the

list of documents annexed with the writ petition and duly

mentioned in the F.I.R be allowed to be exhibited. The counsel

relied upon (PLD 2007 Karachi 194) Begum Salma Ahmed

Versus The State through Chairman, (2012 P.Cr.L.J 73 Lahore)

Rizwan Ahmad and 5 others Versus The State and another,

(2002 SCMR 468) Abdul Hamid Mian Versus Muhammad Nawaz

Kasuri, (PLJ 2005 Lahore 563) Muhammad Ishaq Versus State

and 6 others, (2009 YLR 1449 Karachi) Chaman Aslam versus

Muhammad Aurangzeb and another, (2001 SCMR 308) The State

Versus Muhammad Yaqoob and others, (2001 YLR 746 Lahore)

Mst Shama Akram versus Muhammad Latif @ Teefa @Liqat and

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7 others and (PLD 1994 Lahore 93) Nusrat @Nusree versus The

State.

4. The learned counsel for the respondents and the

learned Additional Advocate General argued that the impugned

orders of both the courts below have legally and concurrently

declined petitioners prayer with lawful authority and jurisdiction,

therefore, this writ petition being misconceived, merits dismissal.

It was also contended that the petitioner has no case, inasmuch as,

he malafidely filed the application for summoning of witnesses and

placing some documents on record just to fill in the lacunas in the

case. And if this writ petition is allowed, then this litigation will

have no end. To substantiate his contentions, learned counsel for

the respondents relied upon (2014 P.CrL.J 108 Shariat Court

AJ&K) Abraiz Babu and 2 others versus The State and another,

(2010 P.Cr.L.J 1051 Lahore) Noor Muhammad Versus Amin

and others (PLD 2001 Supreme Court 384) Dildar Versus The

State through Pakistan Narcotics Control Board Quetta.

5. The learned counsels have been heard at length and

with their able assistance, the record before this Court was also

perused. The case laws relied upon by the counsel for the

respondents emanating from different facts and circumstances are

not applicable to the case in hand, therefore, the reliance of the

learned counsel on the aforesaid judgments is misconceived. Both

the courts below dismissed the application of the petitioner

primarily on the ground that if the said documents were allowed to

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be exhibited in the statement of the Prosecutor, the right of the

accused would be prejudiced. On perusal of the F.I.R and the

statements of the prosecution witnesses it is evident that detail of

the said documents is duly and categorically mentioned, hence the

accused/respondents will not be taken by surprise if the said

documents are allowed to be exhibited. Admittedly the evidence

has not been closed yet and of course the defence can rebut these

documents by producing evidence. Even otherwise the court has the

power not to rely on the said documents if they are not convincing.

6. The Honourable Supreme Court in the case reported as

PLD 2013 Supreme Court 160 Nawabzada Shah Zain Bugti and

others versus The State, held that the trial court should not

summarily dismiss an application under section 540 Cr.P.C merely

on the grounds that it was filed just to fill lacuna of the case or that

it was a belated application. The trial court was under an obligation

to scrutinize the material before it and then come to a decision

whether the said material placed before the trial court was essential

for a just and proper decision of the case or not.

7. It is the duty of the trial court while hearing a case, to

dig out the truth of the case and for that the trial court should

carefully scrutinize all evidence before it and even call for the

evidence that is crucial for the just decision of a case. Under section

540 Cr.P.C trial court has been given wide discretionary powers to

summon all relevant evidence at any stage of the trial, necessary to

decide the controversy in question. In the first part of the section

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540 Cr.P.C the court may in its discretion summon for evidence but

under the second part, it is compulsory upon the courts to summon

the evidence essential for the just decision of the case.

8. Apparently both the courts below have failed to

exercise their powers vested in them under the law thereby causing

irreparable loss and miscarriage of justice, therefore, case for

interference and invalidation of both the impugned orders is made

out. While accepting this petition, both impugned orders of the

Judicial Magistrate Samundari dated 1.11.2014 and that of the

learned Additional District Judge Faisalabad dated 26.6.2015 are

set aside with direction to the trial court to decide the application of

the petitioner afresh, after scrutinizing/evaluating all the documents

which the petitioner wants to exhibit, and thereafter to pass a

speaking order as to whether documents intended to be exhibited

are necessary for the just and proper decision of the case or not. If

the documents desired to be exhibited by the petitioner are even

remotely found necessary for a just conclusion of the trial, the said

documents should be allowed to be exhibited. Of course, the

respondents would also be allowed to further cross examine the

witnesses and to raise any/all objections on the admissibility of the

said evidence and to produce defense evidence in rebuttal if they so

desire. Petition accepted. Case remanded to the Trial Court.

(ERUM SAJAD GULL)

JUDGE
APPROVED FOR REPORTING

JUDGE
Johnson