P L D 2016 Lahore 533 (PLP)
MUHAMMAD AWAIS — Petitioner Versus The STATE and others — Respondents
| Citation | P L D 2016 Lahore 533 (PLP) |
| Forum / Court | High Court |
| Bench Members | N/A |
| Parties | MUHAMMAD AWAIS — Petitioner Versus The STATE and others — Respondents |
| Primary Law | (b) Criminal Procedure Code (V of 1898), (a) Criminal Procedure Code (V of 1898) |
Q1: What are the key laws and sections cited in P L D 2016 Lahore 533 (PLP)?
This judgment primarily cites: (b) Criminal Procedure Code (V of 1898), (a) Criminal Procedure Code (V of 1898) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 2016 Lahore 533 (PLP)?
The case was heard and decided by the High Court bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 2016 Lahore 533 (PLP) (MUHAMMAD AWAIS — Petitioner Versus The STATE and others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Syed Nasir Ali Shah for Petitioner.
- Muhammad Mohsin Awan for Respondent No.2.
Headnotes / Summary
S. 540
Qanun-e-Shahadat (10 of 1984), Preamble
Power to examine material witness or examine person present
Scope of S.540, Cr.P.C.
Re-examination/recalling of witnesses
Principles as to permissibility
Formal witness/constable not cross-examined by defence without any reason
Trial Court dismissed application filed under S.540, Cr.P.C. for re-examination of prosecution witness/constable
Accused contended that said witness, having received the parcel of the empties, had deposited the same in Forensic Science Laboratory, but Investigating Officer had not recorded his statement under S.161, Cr.P.C. and that statement of said witness was essential as said parcel had been submitted with a delay of sixteen days
No provision existed either in Cr.P.C. or Qanun-e-Shahadat, 1984 to recall a witness for re-examination
Discretion to summon a material witness was left to Trial Court under S.540, Cr.P.C.
Section 540. Cr.P.C. had two parts: in the first part, the discretion was with the court; while, the second part was mandatory
Purpose of S.540, Cr.P.C. was to empower the court with ample jurisdiction to ensure that court dug out truth during trial, so that no innocent was punished
If the court was of the view that evidence of a witness was to be recorded in order to reach a just conclusion of the case, then the court had powers to even re-examine any witness
No witness could, however, be re-called for examination to fill the lacuna left by defence or prosecution
Witness could only be recalled for examination in exceptional cases, where interest of justice thus demanded to rectify an obvious mistake
Accused, in the present case, could not satisfy the court as to why he had chosen not to cross-examine the said witness
Witness, sought to be recalled, was formal witness, and not recalling him would not amount to miscarriage of justice in any way
Statements of all witnesses had already been recorded and the case was fixed for final arguments
Revision petition was dismissed accordingly.
S. 439
High Court's power of revision
Scope
High Court can exercise revisional jurisdiction only when there are exceptional circumstances, and impugned order is perverse or suffering from any type of infirmity.
Judgment & Decree
MRS. ERUM SAJAD GULL, J.--The instant Criminal Revision is directed against the order dated 04.07.2015 passed by the learned Additional Sessions Judge, Faisalabad whereby the application moved by Muhammad Awais/ petitioner under Section 540 Cr.P.C. for re-examination of Abdul Sattar Constable/PW-9 was dismissed.
2. Learned counsel for the petitioner has argued that Abdul Sattar Constable/PW-9 received the parcel of the empties on 22.07.2013 and deposited it in the Forensic Science Laboratory on 24.07.2013 but no statement under section 161, Cr.P.C. was recorded by the investigating officer; that as per statement the parcel of the pistol was received by Abdul Sattar/PW-9 on 30.07.2013 and the same was deposited on 31.07.2013 but the parcel was submitted on 16.08.2013 after a delay of 16 days; that the re-examination of Abdul Sattar constable/PW-9 is essential for the just and fair conclusion of the trial, therefore the impugned order be set aside and the petitioner may be allowed to cross-examine the formal prosecution witness Abdul Sattar constable/PW-9.
3. Learned DDPP assisted by the learned counsel for the respondent No.2 has argued that the defense counsel was given an opportunity to cross-examine the formal witness PW-9 Abdul Sattar constable, but deliberately the defense counsel did not avail the opportunity to cross-examine the witness, so that this application could be moved to delay the trial. As this criminal revision is without merits, hence be dismissed, so that the trial could be concluded.
4. Arguments have been heard and record perused.
5. In the Code of Criminal Procedure, 1898 and in the Qanun-e-Shahadat Order, 1984, there is no provision to recall a witness for re-examination. This provision has deliberately not been given, as if it was given then there would be no end to the trial and witnesses would have been re-called for re-examination to correct any portion of their statement not favourable to either party. The discretion to summon a material witness has been left to the court under Section 540 Cr.P.C. This Section is reproduced as under:- "Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case." The aforementioned section has two parts. In the first part, discretion is with the court while the second part is mandatory. The purpose of Section 540, Cr.P.C. is to empower the court with ample of powers to ensure that the court digs out the truth during trial, so that no innocent person is punished. If the court is of the view that the evidence of a witness be recorded in order to reach a just conclusion of the case, the trial court has the powers to even re-examine any witness, but no witness can be re-called for examination to fill the lacuna by the defence or the prosecution.
6. Witnesses can only be recalled for examination in exceptional cases where interest of justice so demands to rectify an obvious mistake. On perusal of the record, it has transpired that on 23.04.2015 Dr. Kishwar Naheed was examined as PW-8 and was also cross-examined on the same day. The petitioner/accused was given an opportunity to cross-examine the formal witness Abdul Sattar constable/PW-9 on 23.04.2015 but the defense counsel chose not to cross-examine the said formal witness. The petitioner/accused has failed to satisfy this Curt, as to why the defense counsel did not cross- amine the witness even though an opportunity was provided at the relevant time. No prosecution witness can be summoned for further cross-examination just to fill in the lacuna by any party. If this is allowed, trials will never come to an end. The revisional jurisdiction of this Court can be exercised only when there are exceptional circumstances and the order impugned is perverse or suffering from any type of infirmity.
7. The statements of all the witnesses have been recorded and the case is fixed for final arguments. The witness to be re-called for examination is a formal witness and by not re-calling him it will not amount to miscarriage of justice in any way. No illegality has been pointed out in the order impugned.
8. As reiterated above, this Criminal revision being devoid of merits, is dismissed and the order dated 04.07.2015 passed by the learned Additional Sessions Judge, Faisalabad is upheld. SL/M-2/L Revision dismissed.