1993 P Cr (PLP)

(c) Criminal Procedure Code (V of 1898)

S. 540

Change of counsel by itself is no ground for recalling the witnesses. MA. Awan for Applicant. Hayat Qureshi for the State. Date of hearing: 27th April, 1993. This revision under section 439 read with section 561-A, Cr.P.C., is directed against the order, dated 19-1-1993, passed by learned IInd Additional Sessions Judge. Karachi, Central, whereby he dismissed the application filed by the applicant under section

540. Cr.P.C. The facts relevant for decision of this revision are as follows: Applicant Syed Hassan Abbas Rizvi is facing trial in a case which has been registered under section 302, Qisas and Diyat Ordinance, vide F.I.R. No.566/90 of Police Station Gulberg. According to impugned order, complainant Syed Ali Mehandi. P.Ws. Qamar Hussain Mirza, Naveed Hassan, Syed Muhammad Sarwar, Syed Ali Abbas Zaidi, Syed Dilawar Abbas Zaidi, Javed Anwer and Dr. Zubair Ahmed have already been examined. The applicant moved said application for re-examining the aforesaid witnesses, which was dismissed by the impugned order. Under section 540, Cr.P.C., a person already examined can be summoned and re-examined if further examination is essential to the just decision of the case. The re-examination can be for the purpose of removing indistinctness in his testimony or to rectify an obvious mistake of omission or commission or for any reason which will be, ex facie, useful for arriving at a just decision in the matter and for this the party invoking the jurisdiction of the; Court for exercising power in its favour shall satisfy the Court about the existence of lacuna or of the circumstances, which palpably justify such action. Mere quoting the words of section in the application is not enough for exercising such powers. In the case in hand, it appears that above-named P.Ws. were examined by the prosecution and cross-examined by the defence counsel. Learned its counsel for the applicant was repeatedly asked to point out the specific reason for which he wanted to cross-examine again these witnesses. He submitted that certain documents are to be brought on record through them. He, however, neither disclosed the nature of those documents nor filed their copies alongwith this revision application. It appears from the impugned order that background for moving said application was that the then counsel was superseded by another counsel, and the latter filed the application in question. Change of counsel, by itself, is no ground for recalling the witnesses. On. 27-4-1993 the revision application, after hearing the arguments, was dismissed in limine and these are the reasons for the same. N.H.Q./H-359/K Petition dismissed.