2004 PLP 966 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution of the Islamic Republic, of Pakistan has been directed against the judgment dated 22-4-2000 passed by a Division Bench of the High Court of Balochistan in an appeal against acquittal.

2. The relevant facts the disposal of this petition are that on 24-8-1996 Agha Nasir Ahmed Bangulzai (P.W.5) on coming-to know that an, attempt on the life of Sher Baz Bangulzai, his nephew who was employed as Labour Welfare Officer was made in his office, immediately proceeded to the office of his nephew but on arrival in the office, he was informed that injured had already been taken to hospital and on reaching the hospital he found that Sher Baz Bangulzai had succumbed to .the injuries. The witness also came to know that the present petitioner committed the murder of his nephew and on the report lodged by him, a ease under section 302/34, P.P.C. was registered against the petitioner and others at Police Station, Sariab. The local police on completion of the investigation submitted challan in the Special Court established under Suppression of Terrorist Activities Act, 1975. Ghulam Qadir (P.W,2), an employee of the Labour Welfare Officer is star witness of the prosecution. This witness was present-in the office at the time of occurrence and identified the petitioner at the spot as culprit and subsequently, he also identified the petitioner in the identification parade held on 15-7-1996 in the police station under the supervision of a Magistrate. However, at the trial, the witness resiled from his previous statement and consequently, on the request of prosecution, he was declared hostile but, before .the conclusion of trial, he swore an affidavit that he deposed contrary to his previous statement under the threat of life. The prosecution on the basis of this affidavit, moved an application under section 540, Cr.P.C. for recalling and re-examining of the witness and the learned trial Judge having considered the request of the prosecution allow-.d the said application vide order dated 15-9-1997. The petitioner challenged the above order by way of a criminal revision in the High Court and a learned single Judge, seized of the matter, while setting aside the order, allowed the criminal revision through the impugned judgment. The complainant being aggrieved of the order passed by the High Court filed a criminal petition for leave to appeal before this Court which was disposed of vide order dated 19-11-1998 leaving the matter relating to the recall and re-examination of the witness by the trial Court open to be taken up in appeal or revision as the case may be if any to be filed against the final judgment and the question regarding the exercise of revisional jurisdiction by High Court against the order in question was, also left open for decision at an appropriate stage. In post-remand proceedings, the petitioner moved an application under section 265-K, Cr.P.C. for his acquittal and the learned Special Judge, vide order dated 11-1-1999 while accepting the said application acquitted the petitioner from the charge. The acquittal of the petitioner was assailed by the State through an appeal before the High Court of Balochistan and a learned Division Bench of the High Court having dilated upon the matter in detail, allowed the appeal and remanded the case to the trial Court for decision on merits after re examination of Ghulam Qadir (P.W.2) within a period of three months.

3. The learned counsel for the petitioner has contended that the power of summoning a witness for re-examination under section 540, Cr.P.C. can be exercised in exceptional circumstances and only in a case in which it is essential for just decision of the case and not for aid of prosecution or defence. It has been argued by the learned counsel that the witness having made full statement intended to make a different statement on unfounded excuse and that if the witness is allowed to be re-examined and take different stand on the same matter, it would destroy the sanctity of trial and defeat the dictates of justice.

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 the instant case the witness required to be re-examined claimed to have seen the occurrence and identified the accused at the spot and also in the identification parade, therefore, his evidence was essential for just decision of the case and the excuse of not disclosing correct state of affairs given by him was plausible and acceptable for his re-examination but since the question regarding the credibility of his evidence would necessarily be ascertained by the Court at the time of giving final verdict and not before the conclusion of the trial, therefore, it would need no discussion at this stage. The correctness or otherwise of the affidavit of the witness and his deposition in re-examination shall definitely be subject to the scrutiny by the trial Court in the light of the circumstances under which this sole eye-witness of the occurrence, earlier deposed contrary to his previous statement and the truthfulness, of his latter statement. The question that what compelled the witness to change his statement at the trial and for what reason he desired to be re examined can only be resolved in the light of his statement in re examination. The fate of the case being depending on the sole statement of the witness, it would be unfair to the prosecution not to call him in the witness-box for re-examination and his re-examination would not be against the interest of criminal administration of justice.

5. For the foregoing reasons, we while maintaining the judgment of the High Court under challenge, dismiss this petition. Leave is refused. N.H.Q./M-752/S Leave refused.