1989 P Cr (PLP)

(b) Criminal Procedure Code (V of 1898)‑‑ ‑‑‑S. 540‑‑Re‑examination of witnesses‑‑Witnesses already examined and cross‑examined, hg1j, could only be re‑called and re‑examined if evidence of such witnesses was essential to just decision of case and could not be allowed to be re -examined merely on ground that trial of case had not yet concluded. Saleem Ahmad Naseer v. The State and another 1985 P Cr. L J 1078 ref. Qaisar Mehmood Shafi for Petitioner. Ch. Muhammad Ashraf for Respondents. Date of hearing: 16th October, 1988. The revisional jurisdiction of this Court has been invoked to set aside the order of the learned Additional Sessions Judge V, Rahimyar Khan dated 1‑8‑1988, who had allowed re‑examination of three prosecution witnesses already examined in a double murder case. The eye‑witnesses namely, Sanwal, Malik Lal and Mushtaq Ahmad were examined by the prosecution and were cross‑examined by the learned defence counsel at length. The trial of the case had not yet been concluded when an application under section 540, Cr.P.C. was moved, that certain important questions were not asked in cross‑examination and to meet the ends of justice, the three witnesses named above should be re‑examined. The learned trial Court has allowed the re‑examination of these witnesses on the ground that the case has not yet concluded.

2. Change of a counsel does not entitle a party to re‑examine the witness already examined by the prosecution and cross‑examined by the learned defence counsel. The petition filed on behalf of the accused is vague and it has not been explained on what points these witnesses were not examined. Section 540, Cr.P.C. reads as under:‑ "

540. 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 Court is empowered to recall and re‑examine the witnesses but there is an important condition, if the evidence of such witnesses appears to it essential to the just decision of the case. This condition has not properly been examined by the learned trial Court. In a similar case reported as Dilbar v. The State P L D 1986 Kar. 385, it was held that to allow a new counsel to re‑examine the witnesses would be a dangerous precedent and every time a new counsel who is engaged can claim to recall and re‑examine the witness. Again in Saleem Ahmad Naseer v. The State and another 1985 P Cr. L J 1078 the scope and application of section 540, Cr.P.C. has been extended. In the instant case, the trial Court did not appreciate that the re‑examination of such witnesses was essential to the just decision of the case. It was influenced by the mere fact that the trial has not yet concluded and the witness already examined could be recalled and re‑examined. I, therefore, accept this criminal revision and quash the impugned order. The revision petition stands disposed of. H.B.T./S‑324/L Criminal revision accepted.