1987 PLP 83 (SCMR)

Abdul Rahman and others v. The State P L D 1983 S C 73; Kamal Din v. The State 1983 S C 85 and Ghulam Daud v. The State 1984 S C M R 898 ref. Muhammad Arif, Senior Advocate Supreme Court and Ejaz Ahmad Khan, Advocate‑on‑Record for Petitioner. M. Abdullah Bajwa, Advocate Supreme Court for the State. MIAN BURHANUDDIN KHAN, J.‑‑The petitioner was tried by the learned Special Judge, Anti‑Corruption, Lahore camp at Sialkot under section 161, Cr.P.C. read with section 5(2) of the Prevention 01 Corruption Act, 1947. Date for the prosecution evidence was fixed on 10‑2‑1985. Abdul Majid P.W. 1 was examined by prosecution. The petitioner was directed by the learned Special Judge to call his counsel to cross‑examine the witness it is stated that petitioner returned to the Court, along with his counsel. When the statement of Abdul Majid P.W.1 had already been concluded and the second P.W. Noor Hussain was being examined petitioner's counsel requested that P.W.1 Abdul Majid may be recalled, who was present in the Court, to enable him to cross‑examine the said witness. The learned Special Judge turned down this request and directed that an application for the said purpose be made. On the same day the petitioner, though his counsel, made an application under section 540, Cr.P.C. for resummoning the witness. The learned Special Judge, however, rejected the application vide order, dated 13‑5‑1985 mainly on the ground that the learned counsel for the petitioner could easily come to the Court well in time. The petitioner filed a criminal revision against the said order in the Lahore High Court which was dismissed in limine vide the impugned order.

2. Learned counsel for the petitioner contended that the statement of Abdul Majid P.W.1 was recorded in the absence of the accused/ petitioner. He had not at all blamed the petitioner but had actually stated that the loss to the petitioner could not occur had the learned Advocate been mindful of his duty; that the distinction between the first part of section 540, Cr.P.C. and the second part thereof namely the discretionary domain and the obligatory domain of the powers of the learned trial Court has escaped notice of the learned Single Judge. In support of his contentions the learned counsel relied on Abdul Rahman and others v. The State P L D 1983 SC 73; Kamal Din v. The State PLD 1985 SC 85 and Ghulam Daud v. The State 1984 S C M R 898.

3. In the impugned order the learned High Court Judge observed that after considering the submissions made by the learned counsel for the petitioner, he was not persuaded to agree with him as there was no affidavit of the learned counsel for the petitioner placed on the record to the effect that the petitioner had come to take him to the Court and that when they appeared before the learned Special Judge. Anti Corruption, the evidence of Abdul Majid P.W‑1 had already been recorded in the absence of the accused. It was further observed by the learned Judge that it was within the discretion of the Court to re‑summon or refuses to re‑summon the witness for cross?examination and, therefore, the order of the learned trial Court was neither perverse nor illegal.

4. Learned counsel submitted that just on the conclusion of the statement of Abdul Majid P.W.1 counsel for the accused had appeared and had made a request immediately for recalling the said witness for re‑examination, that he also gave reasons in the application. Mr. Aslam Bajwa, Advocate has filed as affidavit in this Court, in this regard.

5. In the interest of justice, we convert this petition into an appeal, allow the same and remand the case to the learned Special Judge, Anti‑Corruption for affording an opportunity to the petitioner or his counsel to cross‑examine the aforesaid witness and thereafter proceed) with the trial of the case in accordance with law. M. I.??????????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.