2006 PLP 3308 (YLR)

ABUDL SHAKOOR PARACHA, J.

Nadeem Wali petitioner/accused involved in a case registered vide F.I.R. No.18 dated 6-7-2001 under sections 302/324/353/34 read with section 7 ATA at Police Station, Kalar Kahar, Chakwal assails the order dated 8-4-2006 passed by the learned Judge Special Court No.1 Anti-Terrorism, Rawalpindi Division and Islamabad Capital Territory through which the application of the petitioner Nadeem Wali under section 540, Cr.P.C. to re-summon P.Ws. 3, 4, 9, 10, 12 and for allowing his counsel to cross-examine the above stated witnesses has been rejected.

2. Learned counsel contends that petitioner accused has a legal right, under the Jaw to appoint a counsel of his choice. The cross-examination was done on the above stated P.Ws. by the State counsel unauthorizedly even proper instructions were not obtained from the present petitioner. Further contends that on the mandate of section 540, Cr.P.C. it was obligatory on the part of the Court to summon, examine, or recall and re-examine any such person, if the Court thinks it proper that said person is necessary for the purpose for just decision of the case. Conversely, learned Assistant Advocate-General contends that by using the word "may" in section 540, Cr.P.C. it confers discretion on the Court to summon, re-examine or recall any such person if his evidence appears to it essential to the just decision of the case. The jurisdiction has rightly been exercised by the Court under section 540, Cr.P.C. because the witnesses have been already cross-examined by the defence counsel appointed by the Court.

3. We have heard the arguments of the learned counsel for parties and perused the record with their assistance.

4. Right to be defended by a pleader counsel is a statutory right of the accused particularly in charge entailing capital punishment which cannot be abridged by appointment of counsel a day or two before trial. See the case of Hakim Khan and another v. State 1975 SCMR

1. In the case of Muhammad Sharif v. The State PLD 1973 Lahore 365 DB the counsel was not appointed in accordance with rule 2, Part-C, Chapter 24, Volume 3 of the High Court Rules and Orders, the case was remanded. The admitted position on the record is that the State counsel has cross-examined the above stated witnesses i.e. P.Ws. 3, 5, 9, 10 and 12.

5. Section 540, Cr.P.C. gives ample power to the Court to recall a witness or examine any person which reads as under;-- "S.540, Power to summon material witness or examined persons present.

Any Court may, at 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."

6. The plain reading of the above section indicates that there are two portions of section 540, Cr.P.C. The first part empowers the ordinary Courts at any inquiry, trial and other proceedings under this Code to 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. Whereas the second part of the said section enshrines the Court to summon, examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case. In other words in the first part of the aforesaid section the use the word "may" confers discretionary power on the Court whereas the second part of this section by employing the word "shall" makes it obligatory on the Court to summon, examine of recall and re-examine such person if his evidence appears to it essential to the just decision of the case. See case reported as Mehr Khan v. The State PLD 1991 SC 430.

7. We have noted that in support of the fact that petitioner had engaged a private counsel. The cross-examination of the stated P.Ws. was conducted by the State counsel depriving the petitioner from his valuable right to defend himself through a private counsel of his own choice. We feel that evidence of the above stated witnesses i.e. P.Ws. 3, 5, 9, 10 and 12 appears to the Court essential to reach a just conclusion of the case, therefore, it was obligatory for the trial Court on the basis of second part of section 540, Cr.P.C. to summon, examine and recall the above witnesses. For what has been discussed above, this writ petition is accepted and the order dated 8-4-2006 rejecting the application of the petitioner to re-summoning the above stated P.Ws. for cross-examination is declared to be without lawful authority. A direction is issued to the trial Court to examine the witnesses mentioned above and afford an opportunity to the petitioner to cross-examine them. Disposed of. H.B.T./N-90/L Petition accepted.