2022 PLP 1742 (YLR)

SADIQ MAHMUD KHURRAM, J.

Through this petition, the order passed by learned Additional Sessions Judge/Model Criminal Trial Court, Multan dated 26.02.2020 has been assailed whereby, the learned trial court allowed the application filed by the prosecution under section 540 of the Code of Criminal Procedure, 1898 seeking re-examination of Zafar (PW-13).

2. The brief facts of the case are that the petitioner is facing trial in case FIR No.414 of 2017 dated 24.06.2017 registered at Police Station Muzaffarabad, District Multan in respect of offences under sections 302, 109, 34, P.P.C. After the formal investigation of the case, report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court, wherein the petitioner, namely Ejaz Ahmad and his co-accused were sent to face trial. The learned trial court framed the charge against the accused, to which the accused pleaded not guilty and claimed trial. The learned trial court proceeded to take evidence in support of the prosecution and the prosecution got recorded the statements of as many as thirteen witnesses. During the examination of Zafar (PW-13), an application under section 540 of the Code of Criminal Procedure, 1898 was filed by the prosecution praying therein that Zafar (PW-13) be re-examined. The learned trial Court vide order dated 26.02.2020, allowed the said application as filed by the prosecution and directed that Zafar (PW-13) be re-summoned for the recording of his statement.

3. The learned counsel for the petitioner submits that the order passed by learned Additional Sessions Judge/Model Criminal Trial Court, Multan dated 26.02.2020 is against facts and law; that no exercise of jurisdiction under section 540 of the Code of Criminal Procedure, 1898 could have been made by the learned trial court prior to the conclusion of examination of Zafar (PW-13).

4. The learned Deputy District Public Prosecutor is in agreement with these contentions of the learned counsel for the petitioner that prior to the completion of the cross-examination of Zafar (PW-13) by the accused, no such order could have been passed by the learned trial Court however, submits that under section 540, Cr.P.C., the learned trial Court has the power to summon and re-examine any witness during the course of trial which it finds essential for the just decision of the case.

5. The learned counsel appearing on behalf of respondent No.2/complainant of the FIR has opposed the contentions of learned counsel for the petitioner and submits that this petition merits dismissal being without merit.

6. I have heard the learned counsel for the petitioner, the learned Deputy District Public Prosecutor, the learned counsel for the respondent No.2/ complainant of the FIR and perused the record with their able assistance.

7. Perusal of the record reveals that Zafar (PW-13) was produced by the prosecution as a witness and the learned trial Court recorded his examination-in-chief on 20.01.2020 whereas, on the said date, cross-examination on behalf of the accused was reserved. Thereafter, on 13.02.2020, partial cross-examination on behalf of the accused was conducted upon Zafar (PW-13) however, on the said date, remaining cross-examination on behalf of the accused was reserved by the learned trial Court. During the intervening period, an application under section 540, Code of Criminal Procedure, 1898 was submitted by the prosecution seeking re-calling and re-examination of Zafar (PW-13) and the said application was allowed vide order dated 26.02.2020. It evinces from the record that prior to the passing of impugned order dated 26.02.2020, whereby Zafar (PW-13) was directed to be re-called and re-examined as a prosecution witness, the said prosecution witness was already being examined by the learned trial court and the cross-examination on behalf of the accused was ongoing and was yet to be concluded. No doubt, section 540 of the Code of Criminal Procedure, 1898 empowers the learned trial court to recall and re-examine any person if his evidence appears to it to be essential for the just decision of the case but the learned trial court could not have exercised such power under section 540 of the Code of Criminal Procedure, 1898 to re-call a witness who was already being examined by it and his cross-examination by the accused was yet to be concluded. The wording of section 540 of the Code of Criminal Procedure, 1898 is very clear in its meaning. Section 540 Code of Criminal Procedure, 1898 reads as under:-- "

540. Power to summon material witness or examine person present. 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"(emphasis supplied) Section 540 of the Code of Criminal Procedure deals with three kinds of cases and invests the Court with a power to deal with them. The first case is of a person not examined by any party and who is not present in Court. Such a person may be summoned by the Court to give evidence, in which case he will be summoned and examined by the Court. The second case is of a person who is present in Court though he is not summoned as a witness. In this case also the Court can examine such a person, and the third case is of a person who has already been examined in Court and the Court is invested with the power to recall that witness already examined, and to re-examine him. This power, however, can be exercised by the Court if the evidence of such a person appears to the Court essential to the just decision of the case. Articles 132 and 133 of the Qanun-e-Shahadat, 1984 deal with examination of a witness and the different stages of the evidence of a witness. Articles 132 and 133 of the Qanun-e-Shahadat, 1984 read as under:-- "

132. Examination-in-chief, etc.

(1) The examination of a witness by the party who calls him shall be called his examination-in-chief. (2) The examination of a witness by the adverse party shall be called his cross-examination. (3) The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

133. Order of examinations.

(1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. (2) The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. (3) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter." The examination of a witness by the party who calls him is called examination-in-chief. The examination of a witness by the adverse party is called cross-examination, and the examination of the witness subsequent to the cross-examination by a party is re-examination. Article 133 of the Qanun-e-Shahadat, 1984 prescribes the order in which the witness is to be examined. It says, the witness shall be first examined-in-chief, then if the adverse party so desires, cross-examined, and then, if the party calling him so desires, it can get him re-examined. The aforesaid provision, therefore, lays down a procedure as to how a witness called on behalf of a party is to be dealt with at the trial and the order in which the witness has to be examined by each party (prosecution and accused) during the trial. The term "already examined" as used in section 540 of the Code of Criminal Procedure, 1898 can be easily construed to mean that a witness stands already examined when the order in which the witness is to be examined prescribed by the Article 133 of the Qanun-e-Shahadat, 1984 has been followed and the examination of the said witness has been completed. The essential requirement is that the witness sought to be recalled and re-examined under the provisions of 540 of the Code of Criminal Procedure, 1898 must have been already examined. In this case, the learned trial Court proceeded to allow the application filed by the prosecution under section 540 of the Code of Criminal Procedure, 1898 seeking the recall and re-examination of Zafar (PW-13) even prior to the conclusion of the cross- examination on behalf of the accused of the said prosecution witness namely Zafar (PW-13) , hence, fell in error.

8. In view of the above discussion, this petition is allowed and the impugned order passed by learned Additional Sessions Judge/ Model Criminal Trial Court, Multan dated 26.02.2020 is set-aside. Needless to add that, if the learned trial court comes to the conclusion that any witness already examined needs to be recalled and re-examined for the just decision of the case, it may exercise its jurisdiction in the matter in accordance with the law. SA/E-6/L Petition allowed.