2007 P Cr (PLP)

HASNAT AHMAD KHAN, J.

Through this criminal revision, the legality of order, dated 18-3-2006 passed by Mr. Khaqan Babar, learned Additional Sessions Judge, Multan, whereby application under section 540, Cr.P.C. moved by the accused/respondent No.2 was accepted, has been called in to the question.

2. Brief facts of the case are that during the course of a trial of a murder case registered vide F.I.R. No.143 of 2004, dated 12-11-2004 under sections 302/324, P.P.C. at Police Station Bohar Gate, Multan, an application under section 540, Cr.P.C. was submitted by the respondent No.2 on the ground that P.W.7 and P.W.8 could not be asked some important and material questions during their cross-examination. Said application was accepted by the above mentioned learned Additional Sessions Judge, Multan, simply on the ground that the accused could not put some material and necessary questions to said witnesses.

3. Learned counsel for the petitioner has contended that when the witnesses had already been made subject to lengthy cross-examination, they could not be re-summoned for further cross-examination to fill the lacuna. To support his contentions, he has placed reliance upon Rasheed Ahmad v. Ibrahim and another 1996 PCr.LJ 143.

4. Learned counsel for respondent No.2 has opposed this petition. However, learned counsel for the State has supported the present revision petition.

5. Arguments heard. Record perused.

6. It is true that under section 540, Cr.P.C. any Court at any stage of trial or inquiry may recall and re-examine any person already examined, but said jurisdiction can be exercised on the basis of some judicial reasoning. Second part of the said section is mandatory but the same is not applicable to the facts and circumstances of the present case and even otherwise while passing the impugned order the learned trial Court did not opt to place reliance upon second part of said section and the reasoning for acceptance of the application under section 540, Cr.P.C. as advanced by the learned trial Court is reproduced as under: - "Since the accused has alleged that he could not put material and necessary questions to P.W.7 and P.W.8 and the learned counsel on behalf of accused has argued that he will put some suggestions to the said P.Ws., therefore, I am of the view that the accused could not be knocked out on mere technicalities."

7. The perusal of said order shows that the learned trial Court while accepting the application under section 540, Cr.P.C. had failed to give due consideration to the relevant law. Trial cannot be held in accordance with the wishes of the learned counsel and the witnesses cannot be re-summoned only on the ground that the defence counsel had failed to put material and necessary questions to said witnesses. The said witnesses had already appeared and were subjected to lengthy cross-examination and neither they could be punished nor the trial could be delayed only on the basis of inexperience or failure of the learned defence counsel to perform his duty properly and diligently. It is established law that neither the defence nor the prosecution can be allowed to fill the lacuna by re-summoning of witnesses under section 540, Cr.P.C. If this practice is allowed, none of the trial would ever come to an end and this practice would amount to opening of pandora box. In the present case, the impugned order itself shows that barring statement of the accused, trial had already been completed and same is being delayed only due to passing of illegal order by the learned Additional-Sessions Judge.

8. As far as, the finding of the learned trial Court that the accused could not be knocked out on mere technicalities is concerned, it is observed that this finding is totally misplaced. Re-summoning of the witnesses is not merely a technicality. The accused had already been given full and fair opportunity to cross-examine the said witnesses and if he had failed to put some necessary questions to said witnesses, it is only he who could be blamed for his inefficiency and neither the witnesses nor the prosecution could be made to suffer due to the negligence or inexperience of the learned defence counsel.

9. While giving the above said findings, reliance is placed upon above mentioned case reported as 1996 PCr.LJ 143.

10. For all the reasons stated above, it is held that the impugned order is illegal and unlawful and it is further held that while passing the same the learned trial Court travelled beyond its jurisdiction and as such, the same is not sustainable and consequently, the revision petition is allowed and the impugned order, dated 18-3-2006 is set aside.

11. As delay in the trial has occurred due to the passing of the impugned order, learned trial Court is directed to expedite the trial and to conclude the same preferably within two months. N.H.Q./A-11/L Revision petition allowed.