P L D 1986 Karachi 385 (PLP)

This Revision application under section 435, Cr. P. C. read with section 439, Cr. P. C. is filed against the impugned order, dated 12‑10‑1985 of learned Additional Sessions Judge, Sanghar whereby application filed under section 540, Cr. P. C.. for recall of some witnesses for further cross -examination in a murder case is rejected. Since a shoot law point is involved, main Revision application is being taken up for final disposal. Certified copies of application‑ under section 540, Cr. P. C. and order thereupon have been filed, perusal of which show that in Sessions Case No. 132/1982 State v. Dilbar under section 302, P. P. C. an application was filed in the trial Court by Mr. Allahdino Memon, Advocate on behalf of the accused with a prayer for recall of four P. Ws. namely complainant Wali Muhammad, Allah Bachayo, Muhammad Rahim, S. H. O. Ahmad Khan and Dr. Fazal Rehman for further cross‑examination. It was stated in the application that complainant Wali Muhammad had mentioned in F. I.,R. that accused Dilbar had committed murder of deceased because he suspected deceased to be on illicit relations with his (accused's) wife but this question was not put to P. Ws. Allah Bachayo and Muhammad Rahim while denial by complainant of such suggestion in his evidence was not put to S. H. O. Other points urged and stated in the application made before the trial Court were that some important contradiction were to be put to the P. Ws. proposed to be recalled. About Doctor it was stated in the application that he had to be liked about contents of stomach and he was not cross‑examined at all. This application bas been rejected by the trial Court with valid reasons given in the Order impugned before me. The reasons are that firstly that all the witnesses of the prosecution including P Ws. proposed to be recalled have been examined and cross- examined and the prosecution also had closed its side and the matter was fixed for examination of accused under S. 342, Cr. P. C. Secondly accused was first represented by‑ Mr. Pir Ali Nawaz, Advocate, in whose presence complainant and P. Ws. Allah Bachayo and Muhammad Rahim, Dr. Fazal ud‑Rehman and Taj Muhammad were examined and subsequently accused changed his Advocate and engaged Mr. Yousufani in whose presence remaining witnesses were examined and cross‑examined. After that the side of the prosecution was closed and matter was adjourned for recording statement of accused. The third reason was that the trial Court was satisfied that request was not just and proper and in the interest of justice it was not considered proper to reopen the case which was pending since 1982. Perusal of section '540, Cr. P. C. clearly shows that power given to the Court to summon any person as witness or examine any person in attendance or recall and re‑examine any person already examined is dis cretionary so far the first part of the section is concerned for the reasons that word "may" is used. So far the second part of this section is concerned the word "shall" is used and it has been made mandatory for/ the Court to summon and examine or recall and re‑examine any such person, if his evidence appears to the Court to be essential to the just) decision of the case. It is very clear from reading of the whole section A that the mandatory part shall operate only when the Court is satisfied that evidence proposed to be produced is essential to the just decision of the case. It therefore follows that satisfaction of the trial Court about the importance and essential nature of the evidence proposed to be produced is very necessary. First of all the Court has to be satisfied that evidence to be produced is very important for the just decision of the case. Mandatory' part of this section will apply only when important piece of evidence has been left out inadvertently and the Court is fully satisfied that it must be examined because without it just decision of the case cannot be made. In the instant case all the prosecution witnesses were already examined and they were also cross‑examined by the counsel engaged by the accused. In the first instance Mr. Pir Ali Nawaz, Advocate represented accused in whose presence complainant and four other witnesses were examined and B duly cross‑examined. After that, accused changed his counsel and Mr. Pir Ali Nawaz, Advocate was replaced by another counsel by name Mr. Yousufani and remaining prosecution . witnesses were examined in hi presence and were cross‑examined by him. That is how the prosecution case came to its end and the side of the prosecution was closed and the case was put off for recording statement of accused under section 342, Cr. P: C. At that belated stage accused again changed his mind and changed his Advocate for the third time. This time he brought in Mr. Allahdino Memon, who came in the picture when the whole evidence of the Prosecution had already come on the record in the normal course and according to law with proper opportunities allowed to the defence for cross‑examination. It appears from the impugned order as well as from the arguments advanced by Mr. Allahdino Memon that apparently there is no other justification for making a request for recall of P. Ws. who have already been cross‑examined except that the new counsel engage now has deemed it fit and proper to cross‑examine P. Ws. on a particular point, hence for that reason the Court should allow such request. This would be unfair to the other Advocates who were already in the case and who have conducted cross‑examination of the witnesses on behalf of the accused. It will also smack of discrimination in favour of the new counsel which is not allowed under the law. If section 540, Cr. P. C. is allowed to be invoked by the new counsel, then it will amount to setting up dangerous precedent and there will be no end and every new counsel who is engaged by accused after the examination and cross‑examination of prosecution witnesses would make a request for recall of all those witnesses already cross‑examined because he has thought of a new point for the line of defence. I am afraid section 540, Cr. P. C. is not available on statute book for this purpose and even the mandatory part of it gives power to the Court to summon and examine or recall or re‑examine any such person if his evidence appears to be essential to the just decision of the case. Mr. Allahdino Memon argued before me that complainant in F. I. R. stated that accused had killed deceased because he suspected deceased to be on illicit terms with his (accused's) wife. When complainant was in the box this suggestion was again put to the complainant but he denied. This contradiction was not brought on the record through S. H. O. I don't want to make any comment on this point because this might prejudice the case one way or the other but I see no reason why the question with regard to the credibility of the complainant cannot be taken up in detail at the time of argument before the trial Court. Furthermore, this lapse is to be viewed in the light of the fact that opportunity was given to all the P. Ws. who were available for cross‑examination and they were in fact cross‑examined by the counsel of the accused in the trial Court. Opportunity of cross‑examination cannot be repeated without very valid reasons only the ground that now a new counsel has been engaged and he has thought up a new line of defence according to which he wants to cross examine all the P. Ws. once again. . Mr. Allahdino Memon, Advocate has relied upon judgment of a learned Single Judge of our High Court in Criminal Revision Application No. 15 of 1984, which was allowed and request for recall of P. Ws. in a sessions Case was granted but that case is distinguishable for a variety of reasons. Copy of that judgment in Revision ‑is available in the record of thin case. 'That revision application was filed by the same counsel Mr. Allahdino Memon on the ground that he was engaged in that murder case at a late stage and by that time the Sessions Judge had examined the witnesses and they were cross‑examined by the counsel engaged by the accused. Request was made for recall of those P. Ws. on the ground that they were not cross‑examined on some very important points and were not confronted with police statements. Secondly that originally some very senior Advocate was appearing but due to his illness accused persons had engaged another Advocate who could not prepare the brief properly hence some very important points remained untouched. The third and the most important point is that Mr. A. A. Mohammadally, learned A. A.‑G. appearing for the State in that case raised no objection and in consequence revision application was allowed. In the judgment it bas been observed as under :‑ "Although it is the duty of the counsel to cross‑examine the witnesses. Accused cannot claim as a matter of right to recall witnesses for cross‑examination whenever he desires, particularly, when oppor tunity was afforded to them. In the instant case, some important recorded material has not been brought out and this is a murder case for which applicants are liable to death sentence". Mr. Allahdino Memon also cited the case of Muhammad Azam v. Muhammad Iqbal and others (PLD1954SC95). This is a very elaborate judgment on the import of section 540, Cr. P. C. and the whole relevant case law on this point is discussed in great detail. In this reported judgment the case was filed for offence under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and the trial Judge convicted Muhammad Iqbal, who filed an appeal which was allowed by Federal Shariat Court and in the result conviction was set aside and he was acquitted. The Shariat Bench of the Supreme Court remanded the case to the trial Judge for the reasons inter alia that section 540, Cr. P. C. was not followed in letter and spirit and some evidence was left out. All those pieces of evidence which were left out by the trial Judge have been pinpointed as alleged marriage, statement under section 164/200, Cr.P.C., age of prosecutrix and effect there of on the acts of accused. It may be pointed out that the learned trial Judge did not accept defence plea of Nikah for the reason that Nikahnama was not produced and evidence on that point also was not produced. Supreme Court has directed while remanding the case that if primary evidence could not be produced secondary evidence should have been produced as it was essential to the just decision of the case. It was further observed that failure of the parties to produce sufficient evidence after introducing the subject should have not deterred the trial Court in performing the duty under second part of section 540, Cr. P. C. The facts of the present case are entirely different and in this case the whole evidence has been recorded as contemplated under law and all the prosecution witnesses have been examined and fully cross‑examined. I do not feel inclined to allow this revision application simply on the ground that a new counsel has entered the case belatedly after recording of the prosecution evidence and wants that prosecution witnesses should be recalled so that he should cross‑examined them again in accordance with his own line of defence prepared by him. For the facts and reasons stated above, impugned order is hereby upheld and revision application is dismissed. M. B. A. Revision dismissed.