P L D 2023 Balochistan 46 (PLP)

ROZI KHAN BARRECH, J.

Through the instant criminal revision petition filed under Sections 435 and 439, Cr.P.C., the petitioner/accused Samiullah, son of Muhammad Ali, has challenged the vires of the order dated 26.11.2022 passed by learned Special Judge Anti-Rape/Session Judge Sariab Division ("trial court") whereby the application filed by the petitioner seeking summoning of Muhammad Sohail (PW-2) for further cross-examination was dismissed.

2. Brief facts of the case are that the petitioner is facing trial in case FIR No. 81 of 2021 dated 30.10.2021 registered at Police Station Shaheed Manzoor Tareen in respect of offence under section 377, P.P.C. After the formal investigation of the case, a report under section 173 of the Code of Criminal Procedure, 1898, was submitted before the trial court, wherein the petitioner was sent to face trial. The trial court framed the charge against the petitioner, to which he pleaded not guilty and claimed trial. The trial court proceeded to take evidence in support of the prosecution, and the prosecution got recorded the statements of as many as seven witnesses. During the pendency of the proceedings, an application under section 540, Cr.P.C. was filed by the petitioner/accused before the trial court for summoning Muhammad Sohail (PW-12), who is the victim of the occurrence, for further cross-examination. The application was contested by the State. After hearing arguments of learned counsel for the parties, the trial court dismissed the application vide impugned order dated 26.11.2022, whereafter, the instant revision petition was filed.

3. The main crux of the arguments advanced by the learned counsel for the petitioner/accused is that the trial court, while adjudicating the matter concerning the application which was filed under section 540, Cr.P.C., has gone beyond the scope of the law and while passing the impugned order the trial court did not consider the valuable rights of the applicant/accused. He further argued that for complete justice, the re-summoning of PW2 for cross-examination is very much important so that the veracity of the above-mentioned prosecution witness is thrashed and weighted through proper cross-examination because earlier cross-examination conducted on the said witness by previous counsel is not proper and the previous counsel has put no material question for digging out the actual facts for just decision of the case. Lastly, he argued that for the ends of justice and proper adjudication, the re-summoning and re-examination of above mentioned PW is very much important; otherwise, the petitioner will suffer a significant loss.

4. We have heard learned counsel for the petitioner at a considerable length and have gone through the record.

5. Perusal of the impugned order shows that the prosecution witness namely Muhammad Sohail (PW-2), was already cross-examined by the learned counsel for the petitioner/accused. It also appears from the order of the trial court that in this matter, all the prosecution witnesses have already been examined, and the trial is about to conclude, but learned counsel for the accused/petitioner filed the application under section 540 Cr.P.C for re-summoning of the said witness as according to him the said witness was not appropriately cross-examined by the previous advocate.

6. There is no cavil that section 540, Cr.P.C., is divided into two parts. The first part is discretionary, while the second part is mandatory. The powers under the second part could only be exercised when the Court is satisfied that further cross-examination will be essential for the just decision of the case. Section 540, Cr.P.C, imposes responsibility upon the Court that these powers must be exercised with due care and caution. The court cannot use these powers to advance the cause of the prosecution or defence, but these powers are only meant to advance the cause of justice. The powers under section 540, Cr.P.C., are not meant to fill in the gaps or lacunas left by the parties to the proceedings. The wording of section 540 of the Code of Criminal Procedure, 1898, is very clear in its meaning. Section 540 Code of Criminal Procedure, 1898 reads as under:-- "

540. Power to summon material witness or examine person 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"(emphasis supplied) Section 540 of the Code of Criminal Procedure deals with three kinds of cases and invests the Court with the power to deal with them. The first case is of a person not examined by any party and not present in Court. However, such a person may be summoned by the Court to give evidence, in which case he will be summoned and examined by the Court. The second case is of a person present in Court though he is not summoned as a witness. In this case, also, the Court can examine such a person, and the third case is of a person who has already been examined in Court, and the Court is invested with the power to recall that witness already examined and to re-examine him. This power, however, can be exercised by the Court if the evidence of such a person appears to the Court essential to the just decision of the case.

7. Articles 132 and 133 of the Qanun-e-Shahadat, 1984, deal with the examination of a witness and the different stages of the evidence of a witness. Articles 132 and 133 of the Qanun-e-Shahadat, 1984 read as under: "

132. Examination-in-chief, etc.

(1) The examination of a witness by the party who calls him shall be called his examination-in-chief. (2) The examination of a witness by the adverse party shall be called his cross-examination. (3) The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

133. Order of examinations.

(1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. (2) The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. (3) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter."

8. The examination of a witness by the party who calls him is called examination-in-chief. The examination of a witness by the adverse party is called cross-examination, and the examination of the witness after the cross-examination by a party is re-examining. Article 133 of the Qanun-e-Shahadat, 1984 prescribes the order in which the witness is to be examined. It says the witness shall be first examined-in-chief, then if the adverse party so desires, cross-examined, and then, if the party is calling him so desires, it can get him re-examined. The provision above, therefore, lays down a procedure as to how a witness called on behalf of a party is to be dealt with at the trial and the order in which the witness has to be examined by each party (prosecution and accused) during the trial. The term "already examined" as used in section 540 of the Code of Criminal Procedure, 1898, can be easily construed to mean that a witness stands already examined when the order in which the witness is to be examined prescribed by Article 133 of the Qanun-e-Shahadat, 1984 has been followed. The examination of the said witness has been completed. The essential requirement is that the witness sought to be recalled and re-examined under the provisions of 540 of the Code of Criminal Procedure, 1898 must have been already examined.

9. The trial court's record shows that after recording the examination in chief, the prosecution witness was properly cross-examined by the previous counsel for the petitioner/accused. The record reveals that ample opportunity was given to the petitioner/accused for cross-examination of a witness. On engagement of a new advocate, the petitioner/accused filed an application under section 540, Cr.P.C., for, recalling the prosecution witness for his further cross-examination. The petitioner took the ground in his application that the previous counsel could not properly cross-examine the prosecution witness, and his defence was not put on record. The petitioner levelled the allegation regarding the competency of his previous counsel in the cross-examination of PW

2. The engagement of a new advocate is no grounds for recalling any of the witness for cross-examination. It is established law that neither the defence nor the prosecution can be allowed to fill the lacuna by re-summoning of witnesses under section 540, Cr.P.C. If this practice is allowed, none of the trials would ever come to an end, and this practice would amount to opening floodgates. In our considered view, there is no merit in the instant petition.

10. We have also gone through the impugned order passed by the trial court who dismissed the above-said application by assigning cogent reasons within the scope of the law. Therefore, we do not find any illegality or irregularity in the impugned order. Consequently, the instant petition is dismissed in limine. SA/35/Bal. Petition dismisse