2018 PLP 10 (YLRN)

KHADIM HUSSAIN M. SHAIKH, J.

This criminal appeal is directed against the judgment dated 13.06.2016, passed by the trial Court i.e. the Court of 1st Additional Sessions Judge, Malir Karachi in Sessions Case No.788/2014 re-State v. Abid Ali culminated from Crime No.163/2014, for offence under section 23(i) (a) Sindh Arms Act, 2013 of Police Station Sharafi Goth, whereby the appellant Abid Ali has been convicted and sentenced to suffer R.I. for seven years, extending him benefit of section 382-B, Cr.P.C.

2. Briefly the facts of the case are that on 25.05.2014 an FIR being Crime No.163/2014 was lodged at Police Station Sharafi Goth for offence under section 23(i)(a) Sindh Arms Act, 2013 on behalf of the state by ASI Ghulam Mustafa against the appellant Abid Ali on the charge of having been found in possession of an unlicensed 30-bore pistol with three live bullets in its magazine.

3. After investigation, the appellant Abid Ali was sent up with the challan to face his trial.

4. To prove the case, prosecution examined ASI Ghulam Mustafa at Ex.3, who produced Memo of arrest/recovery, Memo of place of Wardat, FIR and Roznamcha entries at Exs.3/A, 3/B, 3/C and 3/D respectively; P.W. P.C. Thomas and P.W. SIP Muhammad Ramzan, were examined as Exs.4 and 5 respectively and they produced police letter, FSL report and entry at Exs.5/A to 5/D and then the learned DDPP for the State closed the prosecution side by filing statement at Ex.6.

5. The statement of accused under section 342, Cr.P.C. was recorded at Ex.7, wherein he denied the prosecution case and professed his innocence. He did not examine himself on oath nor did he examine any person as defence witness.

6. The learned trial Court convicted and sentenced the appellant vide impugned judgment dated 13.06.2016, as discussed in para-1 supra.

7. At the very outset the learned counsel for the appellant, referring to the depositions of two prosecution witnesses namely P.C. Thomas Jone at Ex.4 and SIP Muhammad Ramzan at Ex.5, has contended that both the said witnesses were examined in absence of the defence counsel, and they were subjected to cross-examination by the accused himself by putting some innocent and immaterial questions to them; that an application under section 540 Cr.P.C. filed on behalf of the appellant, praying for recalling the aforementioned witnesses for the purpose of cross-examination, was dismissed by the learned trial Court vide order dated 25.05.2016; that although the said order dated 25.05.2016 was called in question in connected Criminal Revision Application No.87 of 2016 re-Abid Ali v. The State before this Court and an application, seeking adjournment, was moved before the learned trial Court, yet the learned trial Court dismissed the said application and passed the impugned judgment, convicting and sentencing the appellant; and, that by not giving proper and fair opportunity to the defence counsel, the learned trial Court has committed an illegality, which, per him, has caused miscarriage of justice to the appellant. He, therefore, prays that the case may be remanded to the learned trial Court for deciding the case afresh after giving proper opportunity of cross-examination to the defence.

8. The learned A.P.G. half-heartedly opposed, but he has not been able to controvert the contentions of the learned counsel for the appellant. On a query, the learned A.P.G. conceded that the learned trial Court did not show indulgence even during the cross-examination by asking any question to the prosecution witnesses named above.

9. I have given my anxious consideration to the arguments advanced by the learned counsel for the appellant and the learned A.P.G. for the State and have also gone through the R&Ps of the case.

10. From the perusal of the record, it would be seen that on 11.02.2016, both the aforementioned P.Ws namely P.C. Thomas Jone and ASI Muhammad Ramzan were in attendance before the learned trial Court, but only one P.W. namely P.C. Thomas Jone was examined at Ex.4 in absence of the defence counsel, and whereas ASI Muhammad Ramzan was bound down to appear again on the next date for want of case property and then the matter was time and again adjourned for want of the case property, however, on 25.04.2016 SIP Muhammad Ramzan was examined at Ex.5 again an absence of the defence counsel and both the said PWs were cross-examined by the accused himself.

11. Section 540, Cr.P.C., provides that at any stage of the trial any person already examined can be re-called and re-examined if his evidence appears to the Court essential to the just decision of the case. For the sake of convenience section 540 ibid is reproduced here:-- "

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."

12. From a perusal of the record, it would be seen that the accused had not put material questions to the PWs namely P.C. Thomas Jone and ASI Muhammad Ramzan; who were admittedly examined by the prosecution in absence of the defence counsel and in such situation the learned trial Court was obliged to indulge itself during the course of cross-examination of the aforesaid PWs by asking the material and legal questions so as to go at the truth of the matter and to arrive at proper conclusion, if at all the Court had considered it necessary to examine the aforesaid PWs on the aforementioned dates without giving further opportunity to the appellant to bring his advocate, for the cross-examination by the accused is no substitute of cross-examination by an advocate. Furthermore, on 25.04.2016 when the aforesaid PW ASI Muhammad Ramzan was examined, the case property was not shown available, as is evident from his deposition, although on the earlier dates the said PW was not examined for want of case property, which also not only shows dereliction on the part of prosecution, but it adversely reflects upon the prosecution case. Under these circumstances, the learned trial Court, having widest powers under section 540, Cr.P.C., ought to have exercised such powers, while considering the application, moved on behalf of the accused under section 540, Cr.P.C., which was essential to go at the truth of the matter, so as to arrive at just conclusion. Patently, the learned trial Court had dismissed the application under section 540 Cr.P.C., filed on behalf of the appellant, without considering such aspects of the case in hand. Reference can be made to the case of Muhammad Murad Abro v. The State through A.G. Balochistan (2004 SCMR 966), wherein, the Hon'ble Supreme Court of Pakistan has observed that:-- "

4. The purpose of section 540 Cr.P.C. is to enable the Court to go at the truth of the matter to come to a proper conclusion in the case under trial and in the peculiar circumstances, imposes a duty on the Court to summon a person in the witness-box, whose evidence is essential for just decision of the case. Under first part of the section, the Court may in its discretion summon or recall a person or a witness for examination or re-examination but under the second part, it is obligatory for the Court to summon and examine or recall and re-examine any person if his evidence appears essential for just decision of the case but the Court cannot use the power under section 540, Cr.P.C. to advance the case of prosecution or that of the defence. However, this discretionary power should liberally be used in a case in which the examination of a person is material and is essential to come to the proper conclusion." In case of The State v. Muhammad Yaqoob and others (2001 SCMR 308), the Hon'ble Supreme Court of Pakistan has observed that:- "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 one 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 or 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 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."

13. In view of what has been discussed above, I am of the considered opinion that the case deserves to be remanded to the trial Court with directions to re-call two witnesses namely P.C. Thomas Jone and ASI Muhammad Ramzan for deciding it afresh after giving full opportunity of cross-examination to the defence.

14. Above are the reasons of short order announced by me on 08.11.2016, whereby, this appeal was allowed in the above terms. JK/A-73/Sindh Case remanded.