2010 PLP 1157 (YLR)

MUSHIR ALAM, J.

Applicant/accused has impugned the orders passed by the learned Court of Special CNS-1, Karachi in Special Case No.53 of 2009, (F.I.R. No.14 of 2009), PS ANF-Clifton, facing trial under sections 6 and 9 of Control of Narcotic Substance Act, 1997.

1. In the instant case Investigating Officer (I.O.), who was also complainant as well as Seizing Officer was examined by the prosecution as the first witness on 29-8-2009. Investigating Officer was cross-examined and another witness Abdul Hafeez was examined on 16-11-2009. It seems that applicant changed the counsel, who chose to file application under section 540, Cr.P.C, other co-accused cross-examined the witness on 23-11-2009. Applicant before cross-examination, pressed his application, for the recall and re-examination of Investigating Officer, the first prosecution witness on the ground inter alia "since certain material question during the cross-examination of the above named witnesses could not be asked earlier, when he was examined in the witness box. Such questions in the respectful submission of the applicant/ accused are material and important questions and if the same are not put to him the applicant shall be seriously prejudiced".

2. Learned Trial Court, after hearing the parties concluded that "It is worth to mention that an opportunity of cross-examination cannot be repeated without valid reasons and not on the ground that new counsel has been engaged". Mr. Sibtain Mahmood, learned counsel for accused Naimatullah Khan has (not) disclosed any cogent and valid reason for recalling the witness for the purpose of cross-examination". The application under section 540, Cr.P.C. was consequently dismissed through impugned order.

3. It was contended by Mr. Sibtain Mahmood, learned counsel for the applicant that in normal course the Investigating Officer is usually examined after all prosecution witnesses are examined, learned counsel complains such course was not followed in the instant case, and the Investigating Officer was examined first and therefore, the applicant had no opportunity to confront the Investigating Officer with the incriminating material that has come out in the evidence of the 'mashir' who is still in the witness box, as the applicant has not yet cross-examined him. In support of his contention he has placed reliance in the case of Muhammad Younus v. The State 2004 PCr.LJ

699. A learned single Judge of this Court after examining large number of cases, observed that the two witnesses examined after the examination of the Investigating Officer had produced certain evidence with their 161, Cr.P.C. statements, which could not be confronted to the Investigating Officer, who was examined earlier, therefore, the Court allowed the recall and re-examination of the Investigating Officer. Similar view Was followed in the case of Miandad v. The State 2005 PCr.LJ 191.

4. Mr. Sibtain Mehmood, learned counsel contends that it would be in the interest of justice to allow the recall and re-examination of the Investigating Officer at the same time when the second witness under cross-examination is examined.

5. Mr. Ashfaq Hussain Rizvi, learned Prosecutor ANF, vehemently opposed the application. According to him no exception to the cross-examination of the Investigating Officer who is also the Seizing Officer was taken when he was put up as a first witness, not only counsel for other co-accused but so also the counsel for the present applicant/accused cross-examined him without any objection and or reservation. When Mr. Sibtain Mehmood was engaged as new counsel, he moved this application under section 540, Cr.PC seeking to recall and re-examine the witness only on the ground that certain material questions had not been asked earlier, which ground according to the learned Prosecutor ANF is not sufficient to invoke section 540, Cr.P.C. He placed reliance on the case of Syed Lal Hussain Shah v. The State 1997 P.Cr.LJ

792. In the said case it appears that the prosecution witness was not cross-examined by the accused on account of the absence of his counsel who had not even cared to move any application under section 540 Cr.P.C. and even the statement of the accused was recorded and in the said case the Court declined interference in the matter. We have heard the counsel and perused the record.

6. There is no cavil to the proposition that the Court is seized of ample jurisdiction to summon, recall and re-examine any person who has already been examined, provided such recall and re-examination is essential to the just decision of the case. The powers are not to be exercised in a routine or mechanical manner or as a matter of course. Before exercising such power, the Court has to apply its mind objectively to the fact that re-examination of such witness appears to be essential to the just decision of the case. It is rightly contended by Mr. Ashfaq Hussain Rizvi, learned counsel for the respondents that once the applicant chooses not to raise any objection for the examination of the Investigating Officer, who is also the complainant and Seizing Officer in the sequence in which the prosecution led its evidence, not much is left to object to such course after the examination of the Investigating Officer unless, of course, in subsequent evidence any incriminating piece of evidence or material has come on record that needs to be confronted to the Investigating Officer for the purposes of unearthing the truth. In the cases of Muhammad Younus and Miandad (supra), the Court allowed the request in exercise of its revisional jurisdiction on being satisfied that 161, Cr.P.C. statements, produced by the subsequent witnesses needed to be confronted to the Investigating Officer, who had been examined earlier.

7. In the instant case the sole witness in addition to the Investigating Officer is in the witness box and has not been cross-examined by the applicant, therefore, it is not the case of the applicant that the witness under cross-examination has produced any incriminating material that needs to be confronted to the Investigating Officer. Reliance of Mr. Ashfaq Hussain Rizvi, learned Prosecutor ANF, on the case of Lal Hussain (supra), equally is not of much assistance to the learned Prosecutor ANF, in the said case the accused failed to avail the opportunity to cross-examine the witness despite the fact the cross-examination was reserved -ultimately the accused recorded his statement under section 342, Cr.P.C. and the matter was fixed for final arguments, under these peculiar facts and circumstances the application was rightly declined by the trial Court. In the instant case, as observed above, the application under section 540, Cr.P.C. is not to be routinely treated and mechanically granted merely on the ground that the Investigating Officer was examined first before the other witnesses. Object of section 340, Cr.P.C. is not to cloth the accused with a tool to protract the trial, or fill up the lacuna, where the applicant/accused do not object or take any exception to the sequential order of examination of prosecution witness in the order and manner considered appropriate by the prosecution, later on such course cannot be objected to nor furnish a good ground, equally argument that earlier counsel could not ask certain material and important question, which has caused prejudice to his case furnish any justification to invoke section 540, Cr.P.C. Only consideration that with the Court in such matter is that examination, recall or re-examination, of any witness appears to be necessary for the just decision of the case. Finding no merits in the Revision same is dismissed. However, if witness, who is still under cross-examination, produces any incriminating material that need to be confronted to the Investigating Officer and learned trial Court comes to conclusion that it is essential to the just decision of the case, then the Court may either on its own motion or on application of applicant/accused may consider recall and re-examination of the Investigation Officer. Criminal Revision Application is disposed of accordingly. H.B.T./N-11/K Petition dismissed.