2006 PLP 691 (MLD)

MUHAMMAD RAZA KHAN, J.

This is a petition under sections 439/435 read with section 561-A, Cr.P.C. against the order dated 9-6-2005 of the learned Additional Sessions Judge-I, Lakki Marwat whereby an application dated 10-5-2005 for re-summoning Mazullah, the abandoned witness, was allowed.

2. The facts leading to this petition are that Sakhi Jan petitioner was facing trial under sections 302, P.P.C./13 A.O in case F.I.R. No.206 dated 2-6-1996 of Police Station Tajori. The prosecution evidence commenced on 19-8-2004 and was completed on 26-4-2005 when the prosecution evidence was closed under the signature of learned counsel for the complainant. However, subsequently an application was moved on 10-5-2005 for summoning of P.W. Mazullah, who was abandoned earlier on 29-1-2005. This application was allowed through the impugned order.

3. Learned counsel for the petitioner argued that the prosecution was represented by the Public Prosecutor as well as the senior defence counsel and by special statement recorded on 29-1-2005 the Public Prosecutor abandoned P.W. Mazullah. Thereafter the complainant was examined who was subjected to cross-examination consisting of three and a half typed pages. Then on 26-4-2005 the learned private counsel for the complainant closed the prosecution evidence. Learned counsel for the petitioner further argued that the impugned order had adverseiy effected the rights of the accused because the cards of defence are open by the cross-examination of the complainant and, therefore, he could not be summoned to fill-up the deficiencies of the prosecution case. He also added that section 540, Cr.P.C. provides discretion to the Courts but the discretion had to be exercised judiciously and not to invade the vested rights of a party.

4. Learned counsel for the respondents-complainant argued that it was a case of single accused being charged for heinous offence like murder. Initially he absconded and challan was submitted under section 512, Cr.P.C. Subsequently he surrendered and faced the trial. It was alleged that Mazullah Khan was abandoned on 29-1-2005 by the Public Prosecutor without the consultation of the learned counsel for the complainant and that subsequently when the new counsel was engaged, he found that the statement of Mazullah Khan was of great importance. Hence the application was moved which was allowed under section 540, Cr.P.C. The learned counsel further added that it was not the question of exercise of jurisdiction under section 540, Cr.P.C. but that the Courts were bound to find out the truth in the trial and, therefore, an eye-witness, who could not be examined earlier, can be subsequently examined.

5. There is no denial of the fact that the recording of evidence of ah eye-witness is imperative for the just decision of a case, particularly, when the number of eye-witnesses is restricted to two only. However, it is a general practice that the same set of witnesses are examined on the same day and particularly the oral evidence of the eye-witnesses has to be recorded on the same day so that the line of defence is not exposed to the witnesses and the answers to the cross-examination are given truthfully. That is one of the modes of testing the veracity of the witness. When one witness is examined the cross-examination of the other party is not within his notice otherwise he will repeat. the answers to the cross-examination recorded by the other witness. Now the entire story of the defence had become open and the examination of an eye-witnesses at this belated stage shall cause serious prejudice to the right of the accused. The complainant had the facility of private counsel as well as Public Prosecutor. Had it been the slip of Public Prosecutor only, the same could be ignored but subsequently the learned private counsel of the complainant had also closed the evidence under his signature. Had there been an omission, a mistake or negligence, the same could be rectified under section 540, Cr.P.C. but conscious exercise of a choice twice under the valid signature of responsible persons cannot be allowed to be undone because thereby a new practice will be adopted that eye-witness shall be abandoned to be examined later on after getting the entire disclosure of the defence version to help in the proper tutoring of the witnesses to be subsequently examined.

6. The impugned order, permitting the summoning of Mazullah as a prosecution witness, was a deviation from the established practice. The same is, therefore, set aside by accepting this petition and the application for his re-summoning is rejected. S.A.K/52/P Revision accepted.