1997 PLP 2221 (MLD)

‑‑‑‑S.540‑‑‑Summoning of material witness as Court witness‑‑‑No stage fixed‑‑ No stage having been fixed for calling anybody as a Court witness, Trial Court can call witnesses at any stage of the trial. (b) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑Ss.540 & 439‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.11/16‑‑‑Trial Court had summoned two persons as Court witnesses after the close of prosecution as well as defence evidence‑‑‑Validity‑‑‑Held, Trial Court was competent to call witnesses at any stage of the trial as no stage was fixed for calling a person as a Court witness‑‑‑Complainant as well as one of the accused having claimed to have married the abductee, Nikahkhawn etc. were the necessary witnesses to prove the existence of valid Nikah‑‑‑Summoning of the said two persons by the Trial Court as Court witnesses for their evidence was, therefore, not illegal or capricious in any manner‑‑‑Accused were also not likely to be prejudiced as the witnesses having been summoned as Court witnesses, accused could cross‑examine them‑‑‑Accused, however, could not claim the copies of the statements of the said witnesses under S.265‑C, Cr.P.C. as they not having been examined earlier their previous statements did not exist and in this regard Trial Court was directed to provide an opportunity to the defence to cross‑examine the witnesses on the next day if so desired. Arbab Abdul Sattar G. Memon for Applicants. This is a Criminal Revision under the provisions of section 439, Cr.P.C. moved on behalf of the accused persons, who are facing trial under sections 11, 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in the Court of IInd Additional Sessions Judge, Thatta. The prosecution as well as the defence side had completed their evidence and the matter was fixed for final arguments when the prosecution moved an application under section 540, Cr,P.C. for summoning 4 witnesses for recording their evidence. The notice of that application was given to the defence and after hearing both the parties the trial Court passed the impugned order, whereby two of the witnesses mentioned in the application have been ordered to be summoned as Court witnesses whiff:, the request in respect of two others was turned down as they were already shown as prosecution witnesses and were examined in Court. The two witnesses in respect of whom the application under section 540, Cr.P.C. was allowed were Moulvi Muhammad Hashim and Ahmed, whom the Court proposed to examine as Court witnesses: The. learned counsel for the applicant has challenged this order on several grounds. The first ground of the learned counsel for the applicant is that the trial has nearly come to an end and at this fag end summoning of more witnesses as Court witnesses is not warranted by law and it will prejudice the defence. The second argument of the learned counsel is that the defence will be deprived of copies of the statements of these Court witnesses as provided under section 265‑C, Cr.P.C. and, therefore, the defence will again be prejudiced by their examination. I have considered these arguments. As far as the first ground is concerned, the witnesses could be called at any stage of the trial and no stage is fixed for calling anybody as a Court witness. The perusal of the impugned order shows that these two witnesses have been found to be necessary for examination as Court witnesses as their names transpired during the examination of other witnesses. Admittedly, there are counter‑claims as regards the Nikah with the abductee. The complainant claims that the abductee married to him while one o2 the accused also claimed that she was married to him. In view of such position the Court has to decide as to which of the claims of the parties is true Therefore, the point of proving the existence of Nikah depends on examination of necessary witnesses like Nikahkhawan etc the Court, therefore, summoned the said two persons as Court witnesses. Therefore, I do not find that the calling of these witnesses for their evidence is illegal or capricious in any manner. At the same time the accused are not likely to be prejudiced as these witnesses are being summoned as Court witnesses, and the accused will have opportunity to cross‑examine them. The second argument of the learned counsel that he will be deprived of the copies of their previous statements and thereby the accused will be prejudiced is also equally fallacious, as these witnesses do not appear to have been examined earlier and no previous statements are in existence. They will be examined for the first time as Court witnesses, and there are no previous statements in existence, therefore, the learned counsel for the applicant could not claim the copies of the statements under section 265‑C, Cr.P.C. Therefore, the second argument of the learned counsel is also not sound. At the most, it can be observed that the trial Court will give enough time to the counsel for the accused for cross‑examination of these two Court witnesses, after their examinations‑in -chief have been recorded in Court and the defence could obtain the copies of their statements and could cross‑examine them on next date, if the Advocate to desired. Under these circumstances, I do not find any force in this Criminal Revision, and do not consider it fit for admission. However, it is directed that the two Court witnesses when examined in Court, the defence may be given chance to cross‑examine them on next date if the defence so wanted. With these observations, this Criminal Revision is dismissed in limine.

2. In view of the dismissal of the main revision application, this application is also dismissed. N.H.Q./A‑93/K Revision petition dismissed.