1995 P Cr (PLP)

S. 302/34

Criminal Procedure Code (V of 1898), Ss.540 & 439

Recalling of witnesses for re-examination

Evidence of the witnesses sought to be recalled had been recorded in the presence of the defence counsel and if later on the accused by undue influence and pressurising the eye-witnesses had manoeuvred a letter from the complainant and an affidavit from another witness, then recalling and re-examining those witnesses was not essential for the just decision of the case; rather it could create hurdle in the conclusion of the trial and could definitely open a flood gate for facilitating the accused to win over the witnesses

Revision petition was dismissed accordingly. 1992 MLD 930; 1991 PCr.LJ 877 and PLD 1991 SC 437 distinguished. 1991 P Cr. L J 508 rel. Rao Fazal Khan Akhtar for Petitioners. This revision petition is directed against the order, dated 4-7-1995, passed by the learned Additional Sessions Judge, Rawalpindi, whereby he dismissed the application of the petitioners filed under section 540, Cr.P.C. for recalling and re-examining the eye-witnesses, the doctor and the Investigating Officer.

2. The relevant facts giving rise to this revision petition are that the petitioners, who are father and son, were challaned under section 302/34, P.P.C. for the murders of Muhammad Afzal and his brother Mushtaq. The case was initially entrusted to the Court of Mr, Ata Rasul Joya, Additional Sessions Judge, Rawalpindi. The said Court took cognizance of the case and adjourned the case for 23-10-1993. Meanwhile by letter, dated 13-10-1993, the case was transferred to the Special Court for Speedy Trials, Rawalpindi. The said learned Court recorded the prosecution as well as defence evidence. The case was ripe for final decision when stay order was granted by this Court. However, after the abolition of Special Courts for Speedy Trials, the case was again transferred to the Sessions Court and the learned Sessions Judge, Rawalpindi, vide his order, dated 28-9-1994, entrusted the same to Ch. Muhammad Iqbal Naru, Additional Sessions Judge,, Rawalpindi. The petitioners then filed an application before the said learned trial Court for de novo trial, which was dismissed by order, dated 26-6-1995. Thereafter, on 28-6-1995, the petitioners submitted another application under section 540, Cr.P.C. for recalling and re-examining complainant Muhammad Qayyum P.W.7, Iftikhar Ahmad, another eye-witness (P.W.8), Dr. Aniqur Rehman (P.W.5) and Nazir Ahmad, Investigating Officer (P.W.10). It was alleged in the application that Muhammad Qayyum complainant had written a letter to Rabnawaz petitioner to the effect that he had been involved by him falsely and Iftikhar Ahmad P.W.8 had sworn in an affidavit stating therein that he was not an eye-witness of the occurrence and had become so under the pressure of the complainant and the police. The learned trial Judge by his order, dated 4-7-1995, dismissed the said application, hence the present revision petition,

3. It is contended by the learned counsel that section 540, Cr.P.C. is divided into two parts and according to the second part, as the evidence of these witnesses was essential for the just decision of the case, hence the trial Court was bound to summon the aforementioned witnesses, for re-examining them. Placed reliance on 1992 MLD 930, 1991 PCr.LJ 877 and PLD 1991 SC

437. He submitted that in the presence of letter of Muhammad Qayyum complainant and affidavit of Iftikhar Ahmad P.W., with which he wanted to confront them, the trial Court was duty bound to recall and re-examine the aforesaid witnesses, but the rejection of application of the petitioners has resulted into miscarriage of justice.

4. I have heard the learned counsel at length and have perused the case law, referred to above. The case-law relied upon by the learned counsel is distinguishable from the facts of this case, because in those cases the point in issue was whether the evidence of a witness whose evidence had already been recorded was essential for the just decision of the case or not. The learned Judges after considering the facts in those cases came to the conclusion that re summoning of witnesses was justified under the law. In the present case, learned counsel for the complainant while opposing the application of the petitioners relied upon 1991 PCr.LJ 508, wherein their Lordships in a similar situation held that if the practice of re-summoning, the witnesses whose evidence had already been recorded, is allowed then there would be no end to a criminal trial and would open a flood gate for facilitating the practice of winning over the witnesses. The above observations of the learned Judges of the Supreme Court of Azad Jammu and Kashmir are more apt and appropriate in the given circumstances of the case. The Courts are required to examine a witness only once. This fact is not denied by the learned counsel for the petitioners, but if there is some new development, or a particular witness had resiled from the evidence already given by him and had filed an affidavit that would not oblige the Court to re-examine him as the case will not come within the ambit of Part I of section 540, Cr.P.C. which speaks of those persons who were not examined in the Court, though their evidence was essential for the just decision of the case. The witness, whose evidence had already been recorded, can only be recalled for elucidation of the evidence which has been recorded earlier. Under the law, the examination of a witness consists of three parts, i.e. examination-in-chief, cross-examination and re-examination by the parties, which produces him. If in three stages, certain points which have crept up in the evidence of a witness were not clarified, which need clarification, then of course, the Court, can resummon a witness for that purpose only. In the present case, the evidence of the above-named witnesses was recorded in the presence of the defence counsel and if later on, the petitioners by undue influence and pressurising the eye-witnesses manoeuvred a letter from the complainant and affidavit from another witness, then recalling and re -examining those witnesses would not be essential for the just decision of the case; rather it would create hurdle in the conclusion of a trial and would definitely open a flood gate for facilitating the accused to win over the witnesses. In the circumstances, the impugned order of the learned Additional Sessions Judge, is not open to any serious legal objection. This petition being devoid of force, is dismissed in limine. N.H.Q./K-204/L Revision dismissed.