2007 PLP 851 (YLR)

FAZL-UR-REHMAN KHAN, J.--The learned Additional Sessions Judge-III, Kohat by an order dated 11-1-2007 has rejected the application dated 15-12-2006 of the petitioner for re-summoning and re-examining Saifur Rehman, A.S.-I. (P.W.1) and Constable Muhammad Saeed (P.W.2) in case F.I.R. No.611 dated 30-8-2003 of Police Station Saddar Kohat under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 read with section 9(c) of the Control of Narcotic Substances Act, 1997 and now through the present revision, the petitioner seeks their re-summoning and re-examination.

2. The brief facts of the case, as per materials on record, are that on the day of occurrence, P.W.-Saifur Rehman, A.S.-I. along with the police party was present at Police Check Post at Highway. A flying-coach No.E-7475 Peshawar coming from Peshawar side was stopped for checking. Out of the passengers, the petitioner, who was holding a shopping bag in his hand, was deboarded. On search of the shopping bag, opium weighing 2000 grams in two separate packets was recovered from possession of the- petitioner. The opium was taken into possession and the petitioner was arrested.

3. On completion of investigation, challan was put in Court against the petitioner. He was put to trial. In support of its case, the prosecution examined Saifur Rehman, A.S.-I. (P.W.1) and Constable Muhammad Saeed (P.W.2). The former is I.O. of the case while the latter is a witness to the recovery memo. After examining of these two witnesses, the prosecution closed its case and the case was fixed for statement of the accused under section 342, Cr.P.C. However, in the meantime, the petitioner filed the present application that as his previous counsel has not properly cross-examined these two witnesses, therefore, they may be re-summoned for his cross-examination by his new counsel under section 540, Cr.P.C.

4. I have heard Mr. Habibur Rehman, Advocate for the petitioner and have also perused the record.

5. Perusal of the record shows that both P.Ws. Saifur Rehman, A.S.-I. and Constable Muhammad Saeed have been cross-examined. The learned counsel for the petitioner failed to bring to the notice of the Court any authority whereby a witness can be re-summoned for further cross-examination in spite of an opportunity already given to the defence for his cross-examination. In the case of Saleem Ahmad Naseer v. The State and another (1985 PCr.LJ 1078) his Lordship- of a Single Bench of the Lahore High Court while relying on the case of Moulvi Hazoor Bux v. State (PLD 1983 SC 209), has held that: - "The power cannot be exercised for allowing volta face. If this is allowed to be done, it will amount to opening floodgates where witnesses after making full statements might start coming up with one or the other excuse for their re-examination on the same aspect to depose differently. Such a situation will naturally result in diminishing the sanctity, of trials and laying foundations for creating anomalies by allowing the witnesses to take different stands on the same matters by appearing first as a witness of a party and then appearing as a Court witness."

6. The present application has been filed under section 540, Cr.P.C. and with regard to its scope, the Honourable Supreme Court of Pakistan in the case of Painda Gul and another v. The State and another (1987 SCMR 886) has held that:-- "Having regard to the language of section 540, Cr.P.C. it is clear that the section gives very wide powers to the Court to examine any witness as a Court witness at any stage of the case. It is needless to emphasise that this discretionary power of such amplitude has to be exercised with caution and circumspection in accord with the provisions of the Criminal Procedure Code and general principles of criminal law. The Court must guard against the exploitation of this power by parties who had ample opportunity to produce evidence within their knowledge and must not put one of the parties in a position of advantage vis-a-vis the other. The guiding principle is always what the ends of justice demand. We would not dilate on the scope of section 540, Cr.P.C. as the principles regulating the discretion thereunder are well settled by this Court."

7. As the learned counsel for the petitioner failed to point out that re-summoning of the two P.Ws. for further cross-examination was essential for the ends of justice, mere an improper cross-examination is no ground for acceptance of this application. The learned trial Court, therefore, has rightly rejected the application. Resultantly, this revision petition fails and is hereby dismissed in limine. H.B.T./45/P Revision dismissed.