1989 P Cr (PLP)

‑‑S. 540‑‑Cross‑examination is a very valuable right designed to unearth truth and is a very important weapon in the hands of an able and dextrous lawyer which if carefully used and properly employed materially assists the discovery of real truth which is the sole aim and object of all concerned with administration of justice. (c) Criminal Procedure Code (V of 1898)‑ ‑‑S. 540‑‑Penal Code (XLV of 1860), S.506‑‑Constitution of Pakistan (1973), Art.199‑‑Recalling of witnesses‑‑Accused as a person not well versed in the intricacies of law could not have effectively cross‑examined the witnesses who being Advocates were well‑trained in discipline of law and was obviously at a disadvantage‑‑Where the discretion under S.540, Cr.P.C. has been exercised to recall and examine certain witnesses, revisional Court ordinarily may not interfere with such discretion unless its exercise was wholly unjust, unreasonable or perverse‑‑Where discretion exercised by the trial Magistrate was directed towards the sole end of finding out the truth and for reaching a just decision interference by the revisional Court was not proper‑‑Order of revisional Court was set aside and that of the Trial Court was restored by High Court in circumstances. Miss Nahida Mahboob Elahi for Petitioner: Muhammad Nawaz Abbasi, A.A: G. for the State. Respondent No. 1 in person. Muhammad Yusuf petitioner is accused of an offence under section 506, P.P.C. for having abused respondent No.l and threatened him to cause harm to his person vide F.I.R. No. 218 registered at Police Station Kahuta on 28‑10‑1987. Two other practising Advocates at Kahuta, namely, Malik Karamat Hussain and Raja Abdur Rauf are shown, to have witnessed the commission of the offence. Local police investigated the case and after finding sufficient material against the accused submitted challan for his trial in the Court of Assistant Commissioner at Kahuta. Accused was un-represented and cross‑examined the complainant P.W.1, Raja Abdur Rauf P.W.2 and Malik Karamat Hussain Awan, Advocate P.W3 himself. Examination‑in‑chief and cross‑examination was made on 29‑2‑1988 and trial was adjourned for recording of the remaining prosecution evidence. On 25‑6‑1988, accused through his counsel filed an application under section 540/540‑A, Criminal Procedure Code for recalling of three prosecution witnesses for purposes of further cross‑examination by his Advocate. It was stated that since accused was un-represented at the trial, effective cross‑examination of the prosecution witnesses who were practising Advocates could not be made. Application was resisted by the opposite side. However, upon consideration of the records and hearing of arguments, Assistant Commissioner/Sub‑Divisional Magistrate, Kahuta acceded to the request of accused on 8‑1‑1989 and summoned the prosecution witnesses for their re‑examination on 21‑1‑1989. Against this order, complainant filed a revision. Additional Sessions Judge who heard the revision disagreed with the trial Magistrate and set aside his order. Against this decision, Muhammad Yusuf petitioner has filed a petition under Article 199 of the Constitution stating that exercise of discretion by the trial Magistrate could not have been interfered with by Additional Sessions Judge in revisory jurisdiction. Learned counsel for rival parties have been heard. Record has also been examined. In my opinion, impugned order is bad and cannot be upheld. Complainant is an Advocate practising at Kahuta. At the relevant time, he was holding the elective office of the President of Kahuta Bar Association. Eye witnesses are also practising Advocates from Kahuta Bar Association. It is urged chat none from Kahuta Bar Association agreed to assist the accused. Likewise, it is stated that a large number from members of legal fraternity from Rawalpindi also declined to represent the accused at Kahuta. It was in this way that the accused remained un-represented and deprived of proper legal assistance to defend him at the trial. Ultimately, he succeeded to have the services of a lady Advocate from Rawalpindi who made the application for resummoning of the prosecution witnesses for the purposes of their cross‑examination. Section 540, Cr.P.C. enables and in some circumstances casts an obligation on the Court to summon witnesses who would otherwise not be brought before the Court. Similarly, it also gave power to the Court to recall and re‑examine the witness/witnesses for cross‑examination. Section is expressed in widest possible terms and gives full discretion to the Court to ad for the ends of justice. By its very nature, discretion to be exercised depends upon the facts and circumstances of each case. Likewise, powers conferred upon the Court by this section can be exercised at any stage of the enquiry or trial. All depends on the facts and circumstances of a particular case in which the powers under section 540, Cr.P.C. are sought to be exercised. Therefore, mere delay cannot be taken as hurdle for refusing to exercise power under section 540, Cr.P.C. if in the opinion of the Court, it is otherwise essential to the just decision of the case. Cross‑examination is a very valuable right designed to unearth truth. It is a very important weapon in the hands of an able and dextrous lawyer which if carefully used and properly employed materially assists the discovery of real truth which is the sole aim and object of all concerned with administration of justice Accused as a person not well‑versed in the intricacies of law could not have effectively cross‑examined the persons who were well‑trained in discipline of law. Obviously, he was at a disadvantage. It is always a difficult question for the superior Court where it comes to deal with the properiety of exercise of discretion by a Court inferior to it. Nonetheless, where the discretion under section 540, Cr.P.C. has been exercised to recall and examine certain witnesses, ordinarily the revisional Court may not interfere with that discretion unless it is of the view that the exercise of discretion was wholly unjust, unreasonable or perverse. When the facts of the case are examined from this angle, it is not difficult to hold that the exercise discretion by the trial Magistrate was directed towards the sole end of finding out the truth and for reaching a just decision in the case. In this view, interference by the Court below appears to be unjustified and improper. This factor alone compelled me to interfere to set right the course of trial, so that the accused may not have the feeling that he was prejudiced for want of proper legal assistance. In view of the aforesaid, I would accept the petition, set aside order, dated 26‑4‑1989 of Additional Sessions Judge, Rawalpindi and restore that of the Assistant Commissioner, Kahuta passed on 8‑1‑1989. Records be returned. N.H.Q,/M‑1345/L Petition accepted.