P L D 1991 Karachi 351 (PLP)

The question that has been raised in this Special Criminal Revision Application filed under section 185‑F of the Customs Act, 1969, relates to the interpretation of section 540, Cr.P.C.

2. Appellant Malik Muhammad Anwar alongwith others is facing a charge of smuggling of 56 kgs of powder of heroin, an offence punishable under section 156 (1)(8) of the Customs Act, 1969, in the Court of Special Judge (Customs & Taxatidn), Karachi. The prosecution has so far examined six witnesses. Kh. Zeeshan Hussain (P.W. 2) was examined by the prosecution on 25‑9‑1990, and on the same day he was cross‑examined by the advocates representing the other accused persons. The witness could not be cross‑examined on behalf of the present applicant as Mr. M.H. Shah, who was representing him, was busy before Division Bench of this Court in Confirmation Case No.2 of 1990. On 7‑2‑1991, an application under section 540, Cr.P.C. was moved on behalf of applicant for recalling the said witness for the purpose of cross‑examination, but the same was refused vide order, dated 10‑3‑1991. This order is the subject‑matter of the present revision application. 3. 1 have heard Mr Syed Sami Ahmed, learned counsel for applicant and Mr. Jalal‑ud‑din Baloch, learned counsel for the State. The latter has opposed the prayer made on behalf of the applicant.

4. Section 540, Cr.P.C. is expressed in the widest possible terms and the intention is not to limit the discretion of the trial Court in any manner. Admittedly the applicant was in custody on 25‑9‑1990, when Kh. Zeeshan Hussain (P.W.2) was examined and cross‑examined by advocates representing the co‑accused. The record also shows that Mr. M.H. Shah, who was representing the applicant was busy before a Division Bench of this Court in an important case ,q and consequently his failure to cross‑examine this witness was not deliberate, and in such a situation it was obligatory on the part of learned Special Judge to have afforded an opportunity to applicant to cross‑examine the witness, which is a very valuable right, which an accused possesses. No doubt it was discretionary on the part of learned Special Judge to have allowed the prayer of applicant, but the discretion when applied to Court of justice means "sound discretion guided by law". It must not be arbitrary, vague and fanciful, but legal and regular, and in a case where the fate of accused hinges upon the evidence of such an important witness, the discretion should have been exercised in his favour. It may be added that every accused has to be given a fair and reasonable opportunity of being heard and he should not be punished or penalised due to the pre‑occupation of his counsel. Such observations find place in the case of Amir v. The State reported in 1991 P Cr. L J 534.

5. The main object of cross‑examination is to find out the truth. Wigmore, the great writer on the law of evidence says, "Not even the abuses, the mishandlings, and the puerilities which are so often associated with cross‑examination have availed to nullify its value. It may be that in more than one sense it takes the place in our system which torture occupied in the medieval system of the civilians. Nevertheless, it is beyond any doubt the greatest legal engine ever invented for the discovery of truth. However, difficult it may be for the layman, the scientist, or the foreign jurist to appreciate its wonderful power, there has probably never been a moment's doubt upon this point in the mind of lawyers of experience ....He may, it is true, do more than he ought to do; he may make the worse appear the better reason to perplex and dash maturest counsel ‑‑ may make the truth appear like falsehood. But this abuse of its power is able to be remedied by proper control. The fact of this unique and irresistible power remains and is the reason for our faith in its merits. If we omit political considerations of broader range then cross‑examination, not trial by jury, is the great and permanent contribution of the Anglo‑American system of law to improved methods of trial procedure."

6. It appears that the technicalities have been pushed to extreme in this case. Kh. Zeeshan Hussain (P.W.2) is an important witness from the defence point of view and the applicant is likely to be prejudiced in his defence unless he is recalled and cross‑examined by the defence counsel. He is a customs officer and his presence could be secured without unnecessary delay. In such a situation, the application made under section 540, Cr.P.C. for recalling him for the purpose of cross‑examination ought to have been allowed. I would, therefore, set aside this order, dated 10‑3‑1991, by which application made under section 540, Cr.P.C. was dismissed. This application is accordingly allowed and the trial Court is directed to recall Kh. Zecshan Hussain (P.W. 2) for the purpose of cross‑examination. In the result, the revision application is accepted. N.H.Q./M‑1407/K,????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? Revision accepted.