1975 P Cr (PLP)

SARDAR MUHAMMAD IQBAL, C. J.‑On an application moved by the accused the Sessions Judge, Gujranwala by his order dated the 7th of March 1973, summoned for cross‑examination by the accused Captain Muhammad Shafi who bad been given up by the prosecution. He appeared on the 8th March 1973, and was cross‑examined. This is an application moved by Nisar Ahmad complainant against the order of the Sessions Judge with a prayer that it should be set aside and that the statement of Captain Muhammad Shafi should not be read in evidence.

2. The Advocate‑General does not support the order of the Sessions Judge and concedes that it was without any authority in law. Notice was accordingly served on the accused.

3. Mr. Maqbul Ahmad learned counsel for Muhammad Sarwar accused contended that the petitioner being a complainant had no locus standi to challenge the order and that if any authority was aggrieved it was the State but they did not challenge the same. The complainant has invoked the revisional jurisdiction of this Court' and it is quite different from the appellate jurisdiction. Any person can bring to the notice of the Court an illegality or material irregularity in the conduct of judicial proceedings, and the High Court can in the exercise oz its revisional jurisdiction set it right.

4. The procedure for examination of the witnesses is laid down in section 138 of the Evidence Act, wherein it is provided that "witnesses shall be first examined‑in‑chief", then (if the adverse party so desires) "cross-examined" then (if the party calling him so desires) "re‑examined." The prosecution had given up Captain Muhammad Shari. He was not examined- in‑chief. The question of affording an opportunity to the accused to cross‑examine him did not arise. The order of the learned Sessions Judge accepting the application of the accused and calling Muhammad Shafi for cross‑examination is contrary to the provision of section 138 of the Evidence Act and is not supported by any provision of law.

5. Learned counsel for the accused‑respondent contends that this witness should be deemed to have been cross‑examined as a Court- witness, because unless the Court thought that the cross‑examina tion of this witness was necessary, it would not have passed this order. There is no force in contention. If the Court wanted to examine him as a Court‑witness it should have summoned him and first put the questions which were necessary in the interest of justice. The Court, however, did not put any question to the witness and straightaway permitted the accused to cross‑examine him. He, therefore, cannot be deemed to be a Court witness. Learned counsel next contended that the accused could summon him as a defence witness and the same questions could be put to him. It was permissible for the accused to summon him as a defence witness, but he did not do so. On the contrary he applied to the Court for summoning the witness to enable him to cross‑examine him. The witness, in the circum, stances, cannot be deemed to be a defence witness. Furthermore, if he had been called as a defence witness the prosecution would have had an opportunity to cross‑examine him which opportunity was not afforded to them.

6. The order of the learned Sessions Judge is illegal. It is accordingly set aside. The evidence of Muhammad Shafi recorded on 8th of March 1973, will not be read as a part of the evidence. The record should be sent back immediately to the learned Sessions Judge who should dispose of the case in accordance with law. Revision allowed.