2011 PLP 588 (YLR)

SALMAN HAMID, J.

Present application has been moved by the advocate for the applicant under sections 435, 439 read with section 561-A, Cr.P.C. against the impugned order, dated 27-4-2010, passed by the learned Sessions Judge, Jacobabad, under section 405, Cr.P.C. declining the application of the applicant for recalling of two witnesses i.e., the medical officer, namely, Dr. Abdul Karim and the Investigating Officer, namely, A.S.-I. Bashir Ahmed Magsi, for cross-examination, on the grounds that such two witnesses were not properly cross-examined by the counsel appearing for the applicant at the relevant time before the trial Court. It may be stated that while exercising power under section 540, Cr.P.C., the learned Sessions Judge has given his findings after application of mind that summoning of two witnesses was not necessary inasmuch as that at the time of cross-examination of the two prosecution witnesses, no one prevented the learned counsel for the applicant/accused for extensive cross-examination and that when the case is at the brink of disposal, recalling of the witnesses without showing any sufficient reason or cause would defeat the early disposal of the case. The discretion, which was exercised by the learned Sessions Judge cannot be interfered with lightly and as a matter of routine unless grave illegality or deviation from the norms of practice was shown. Nowhere in the application under point such ground has been taken except that the counsel who was appearing before the trial Court did not cross-examine the above two witnesses extensively. I am afraid to state that neither under the provision of 435 or 439, Cr.P.C, nor the provision of section 561-A, Cr.P.C. a case for exercising discretion of this Court has been made out. Section 435, Cr.P.C. speaks about power to call for record of inferior Courts, whereas section 439, Cr.P.C. speaks about High Court's power of revision and section 561-A, Cr.P.C. speaks about inherent powers of this Court to exercise the same for meeting such orders as may be necessary to give effect to any order under the Code of. Criminal Procedure or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is nobody's case and/or it is not case of the present applicant that calling the record of the inferior Court would serve the purpose as far as the cross-examination of the two witnesses is concerned, therefore, in my opinion, citing of such a section was not necessary. At the same time, High Court would exercise the power of revision under section 439, Cr.P.C. when a case thereunder is made out. The present case by no stretch of imagination falls within the pale of section of 439, Cr.P.C. inasmuch as in summoning of witness and cross-examination an order in such respect by the High Court is not within the meaning of revision. Coming to provision of 561-A, Cr.P.C. suffice to state that inherent powers would be exercised by this Court only if such have been left out to be exercised by the Courts below and grave injustice was done. Looking at the case in hand and its perspective, it would become clear that no case for interference has been made out and, therefore, the application deserves no consideration. The case-law cited by the advocate for the applicant in support of his contentions i.e., Altaf Hussain Shamim v. The State PLD 1992 Kar. 91, does not come by his rescue as in such reported case the application under section 540, Cr.P.C. was allowed only when the counsel for the applicant therein was not present at the time of cross-examination and he was prevented from cross-examining the witness at all and it was under these circumstances that the application was allowed for cross-examination of the witness. However, in the present case, the witnesses were in .the hands of the counsel for the applicant for cross-examination and indeed they were also cross-examined. As to the case reported as Muhammad Iqbal Khetana v. The State 1992 MLD 930, in that case application under section 540, Cr.P.C. which was moved therein was decided at back of the appellant and it was under such circumstances that the appli cation was reheard and decided afresh. This case again by no means is applicable in the present case and also of no assistance to the 1e-aimed counsel for the applicant. Refuting the application, the counsel appearing on behalf of complainant stated that the application is not maintainable and the same has been filed in order to delay the cause of justice inasmuch as that the witnesses at the relevant time were cross-examined, and at this stage when the case is at the verge of the disposal, this application merits no consideration, which even otherwise has been moved to delay the cause of justice. In support of his arguments be relied upon Liaquat Ali alias Foji v. The State (2009 MLD 980), wherein it was held that it was the duty of the prosecution to have cross-examined the witness voluntarily and that the provisions of section 540, Cr.P.C. are divided into two parts. The first part relates to the power of the Court to summon any person as a witness or examine any person in attendance though not summoned as a witness. The second part relates to its power to recall and re-examine any person already examined, provided his evidence appears "essential to the just decision of the case". It was further held in that case that once the witness has been cross-examined re-summoning that witness mainly on the ground that he was not sufficiently cross-examined only is not a good ground to be taken and under the circumstances the application under section 540, Cr.P.C. was declined. Similar is the position in the present case, wherein at the relevant time the witnesses were cross-examined and prima facie in order to delay the case and to fill up the lacunas application under section 540, Cr.P.C. was moved; which after hearing by the learned Sessions Judge was dismissed for the reasons mentioned in his order impugned in the present case. For the foregoing reasons, I find the application meritless and the same is hereby dismissed. A. R. K. /M- 136/K Application dismissed.