P L D 2008 Lahore 516 (PLP)

HASNAT AHMAD KHAN, J.

Through this revision petition, order dated 4-4-2008, passed by a learned Additional Sessions Judge, Pattoki, whereby the application filed by the complainant for re-summoning Dr. Abdul Hameed, P.W.-7 for his cross-examination by the complainant, was allowed, has been called into question.

2. The facts of the case are that during the trial conducted on the complaint of the petitioner, statement of Dr. Abdul Hameed, who had conducted the autopsy on the dead-body of Sarfraz Hussain (deceased) was recorded as P.W.7. Seven days after the recording of the said statement, the complainant moved an application under section 540, Cr.P.C. with a prayer to recall P.W.7 for giving an opportunity to the complainant to cross-examine him. After hearing the arguments of both the sides, the learned trial Court accepted the application vide the impugned order and proceeded to recall the said witness for cross-examination to be conducted by the complainant (respondent No.3 herein). 2-A. The revision petition filed by the petitioner was admitted to regular hearing by this Court vide order dated 4-6-2008 whereby the operation of the impugned order dated 4-4-2008 was suspended.

3. In support of this petition, the learned counsel for the petitioner has contended .that the impugned order is totally illegal and unlawful, inasmuch as, P.W.-7 during his cross-examination, had just given his opinion, which could not be made a ground for re-summoning him. He adds that if this practice is allowed it will amount to opening floodgates where parties might start re-summoning the witnesses to fill in lacunas in their case, making it almost impossible for the trial Court to conclude the trial and that the learned trial Court failed to notice that in the application moved by the petitioner, there was no prayer for declaring the said witness as a hostile witness, therefore, without declaring him a hostile witness, he could not have been re-called.

4. Conversely, the learned counsel appearing on behalf of the complainant, has defended the impugned order by contending that the trial was being conducted on the complaint filed by the complainant but the evidence of the said doctor was recorded in his absence, therefore, he could not make a prayer then and there for the re-examination of the said witness, who had made some concession in favour of the accused; that under section 540, Cr.P.C., the trial Court was fully authorized to order for the re-summoning of the said doctor for cross-examination, to be conducted by the complainant. To augment his arguments, the learned counsel has placed reliance on the case of Zulfiqar Ali v. Faiz Matti and 6 others 2001 MLD 307.

5. To elucidate and comprehend the proposition involved in this case the provision of section 540, Cr.P.C. is reproduced as under:- "Power to summon material witness or examine persons present.-Any Court may, at any stage of any inquiry, trial or other proceedings 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. For a just decision of this petition a perusal of Article 133 of the Qanun e-Shahadat Order, 1984, would also be necessary. Consequently, the said Article is reproduced as under:- "Order of examination.--(1) Witnesses shall be first examined -in-chief, then (if the adverse party so desires) cross-examined them (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-examinations and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine the matter."

6. A perusal of section 540, Cr.P.C., would show that the same is divided into two parts. The first part is discretionary in nature, whereas, the second part is mandatory. As per the first part of the said section, it is discretionary power of the Court to summon any person as a witness suo motu or on an application of any party, whereas, according to the second part, the powers to summon, examine or recall and re-examine any person as a witness are to be exercised with due care and caution. The Court cannot use these powers to advance the case of the prosecution or the defence, rather these powers are only meant to advance the cause of justice. Solitary purpose of judicial proceedings in criminal cases is to find out the truth and to arrive at a correct conclusion and to see to it that no innocent person is punished, merely because of certain technical omissions on his part or on the part of the Court, if it appears essential to the Court that the evidence is necessary Ion just decision of the case. Under second part of section 540, Cr.P.C., becomes obligatory for the Court to examine such a witness, ignoring technical and formal objections. It goes without saying that the trial Court has been vested with the jurisdiction to re-examine any witness and the only requirement for re-examining the witnesses is that his examination should be essential for the just decision of the case but at the same time it is also a settled principle of law that no witness should be summoned or re-examined merely to fill in the lacuna by either of the party viz. the prosecution or the defence. Reliance in this regard is placed on the cases of Saifullah v. The State 1994 PCr.LJ 1499 and Syed Hassan Abbas Rizvi v. The State 1993 PCr.LJ 1630. In the latter case it was held by Justice Nazim Hussain Siddiqui, as he then was, as under:- "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." The whole stress on power for examining any person as a Court witness, whether already examined or not, is that his evidence should appear to be essential for the just decision of the case. It can easily be deduced from the provisions of section 540, Cr.P.C. that exercise of power is a matter of discretion. There is no cavil with the proposition that the discretion has to be exercised judicially and on sound material, keeping in view, all aspects of the case. The said discretion is not to be exercised to favour one or the other party. The power can be exercised to know about some thing which is not present on the record already, due to the failure of either party, or due to the reasons beyond the control of any of the parties, or on account of some thing which has come to light, during the trial. While exercising the powers given under section 540, Cr.P.C. it has to be seen by the Court as to how materially the bringing on record of such evidence will help for coming to a just decision. The power cannot be exercised as a matter of rule. If such power is used in a routine manner it would tantamount to opening floodgates where parties may start re-examining their witnesses to fill in lacunas in their evidence. Reliance in this regard is placed on the cases of Rashid Ahmad v. Ibrahim and another 1996 PCr.LJ 1439, Khalid Nawaz and another v. The State 1995 PCr.LJ 1932, Abbas and another v. The State 2003 PCr.LJ 624 and Tanveer Shahzad v. The State 2003 PCr.LJ 751.

7. Now coming to the facts of the case in hand, it has been observed that the statement of doctor Abdul Hameed was recorded as P.W.7. According to his examination-in-chief Sarfraz Hussain (deceased) had suffered as many as five injuries, which according to him were ante mortem in nature and caused by fire-arm. However, during his cross-examination he stated that injury No.2 was an exit wound of injury No.1. In answer to yet another question he stated as under:-- "I cannot rule out that only one bullet hit to deceased which entered through injury No.1 passing through injury Nos. 2, 3 and 4 and was lying in injury No.5." After recording the statement of the said witness he was relieved by the learned trial Court. However, seven days after the recording of the said statement the complainant submitted an application with a prayer to recall the said witness on the ground that the statement of the said witness was recorded in absence of learned counsel for the complainant. It was further claimed that during his cross-examination, the said part of the statement was malafidely made by the doctor to damage the prosecution's case. While submitting the said application it was not claimed that re-examination of the said doctor was essential to the just decision of the case rather it was claimed that in case of refusal of said application the prosecution's case was bound to suffer irreparable loss. Anyway, the said application was accepted by the learned trial Court. From the perusal of the impugned order it appears that the same was passed under the first part of section 540, Cr. P.C. because it was not held by the learned trial Court that re-examination of the said witness was essential to the just decision of the case rather it was observed that allowing the complainant to cross-examine P.W.7 was necessary for fairplay. Similarly while passing the impugned order the language of Article 133 of the Qanun-e-Shahadat Order, 1984, was not taken into consideration, according to which the re-examination shall be directed to the explanation of matters referred to in cross-examination.

8. Recall of a witness for re-examination could be done in exceptional and special circumstances where the interest of justice so demands.

9. Reverting again to the statement of P.W.7 it has been observed that during his cross-examination the said doctor did not give a conclusive statement that the injuries Nos. 1, 2, 3, 4 and 5 were indeed result of one fire. Nevertheless the interest of the .prosecution was watched by the learned trial Court by putting a Court question to the said witness. In reply to the said question, the said doctor categorically stated that he had not mentioned the track of the bullet in the post-mortem report Exh.PE. Obviously the doctor, who, obviously was not an eye-witness of the occurrence, just on the basis of his professional expertise had refused to rule out the possibility of receipt of all injuries by the deceased with one bullet. The case, of course, would be decided after considering the whole evidence including ocular testimony, the post-mortem report, the pictorial diagram made thereon, the examination-in -chief of the doctor (P.W.7), his statement made during the cross-examination and his answer to the Court's question. The controversial opinion of P.W.7 of course, shall not be considered by the trial Court, at the relevant time, in isolation. Be that as it may, the doctor has already made a detailed statement during his examination and cross-examination. His re-examination would be nothing but an abuse of the process of law and wastage of time. Besides, if this practice is allowed no criminal trial would come to an end because during the criminal trials the medical experts often make such-like statements when they are cross-examined. Moreover, the learned counsel for the respondent has failed to demonstrate that re-examination of P.W.7 is required to clarify any point.

10. For what has been stated above, I have come to the inescapable conclusion that while accepting the application filed by the complainant-respondent No.3, the learned Additional Sessions judge, Pattoki, indeed committed an illegality. Therefore, the petition in hand is accepted and the impugned order dated 4-4-2008 is set aside. N.H.Q. /M-239/L Petition accepted. P L D 2008 Lahore 523 Before Zubda-tul-Hussain and Zafar Iqbal Chaudhary, JJ MUHAMMAD YASIR

Petitioner Versus THE STATE

Respondent Writ Petition No.2299 of 2007/BWP, heard on 1st July, 2008. (a) Anti-Terrorism Act (XXVII of 1997)

Ss. 19(3)/12

Penal Code (XLV of 1860), S.302/34

Constitution of Pakistan (1973), Art.199

Constitutional petition

Special Judge, Anti-Terrorism Court accepting the application of the father of the deceased filed under S.19(3) read with S.12 of the Anti-Terrorism Act, 1997, had directed the investigating agency to submit the challan in his Court after incorporating the schedule offence disclosed by the facts of the case

Validity

Question whether the circumstances of the case had given rise to any fear or insecurity amongst the public-at-large or any element of terror was made out of the facts, was a question of fact which could not be dilated upon by High Court in the constitutional proceedings and at the present stage

Moot point, in the present case, was whether in a case in which the proceedings had been taken by the local police under the ordinary law, could the Anti-Terrorism Court pass a direction to the police for inserting any provision of the Anti-Terrorism Act, 1997, in the case or otherwise call for record and take cognizance of the case

Application moved by the father of the deceased under Ss.19 and 12 of the Anti-Terrorism Act, 1997, could neither invest the Anti-Terrorism Court with jurisdiction to show indulgence in the matter, nor to assume the jurisdiction in the garb of S.19(3) of the said Act, which had no doubt empowered the Anti-Terrorism Court to directly take the cognizance of a case triable by it without the case being sent to it under S.190, Cr.P.C.

Police was not the final authority to determine the jurisdiction of the Court where such case would be triable

Police by forming its own opinion might submit the challan under S.173, Cr.P.C. before the concerned Court, but it would then be for such Court to form an opinion that the material available on the record was or was not sufficient to attract the provision of a scheduled offence

Special Judge, Anti-Terrorism Court had no jurisdiction to direct the Investigating Officer to apply S.7 of the Anti-Terrorism Act, 1997, to the case and submit the challan in his Court

Impugned order was consequently set aside with the direction to the Investigating Agency to submit the report under S.173, Cr.P.C. before the court of ordinary jurisdiction, which would proceed further on the basis of the record or pass order thereon in accordance with law

Constitutional petition was allowed accordingly. Muhammad Azam's case PLD 2008 Lah. 63 ref. (b) Anti-Terrorism Act (XXVII of 1997)

S. 19(3)

Criminal Procedure Code (V of 1898), S.190

Cognizance of offences by Anti-Terrorism Court

Power and procedure

Special Court under S.19(3) of the Anti-Terrorism Act, 1997, can directly take the cognizance of a case triable by it without adhering to the provisions of S.190, Cr.P.C.

Subsection (3) of S.19 of the Anti-Terrorism Act, 1997, is a conscious deviation from the ordinary procedure laid down by S.190, Cr.P.C. for cognizance of cases

By virtue of S.190, Cr.P.C. in the first instance on a report under S.173, Cr.P.C. the concerned Magistrate takes necessary cognizance of the case and then, if it is not triable by him, forwards the same to the Court of competent jurisdiction, but S.19(3) of the Anti-Terrorism Act, 1997, has provided an exception to this rule whereby the procedure provided under the Criminal Procedure Code is bypassed for the purpose of expediency. (c) Anti-Terrorism Act (XXVII of 1997)

S. 19(3)

Cognizance of offences

Scope

Provisions of S.19(3) of the Anti-Terrorism Act, 1997, do not empower the Special Court for fishing out the case from different police stations and directing the Investigating Agency to submit challan before it after incorporating the scheduled offence disclosed by the facts of the case. Muhammad Azam's case PLD 2008 Lah. 63 ref. Muhammad Sharif Bhatti for Petitioner. Ch. Shafi Muhammad Tariq, A.A.G. with Akbar Ali S.I. for the State. Muhammad Mansoor Chishti for Respondent No.4. Syed Asim Ali for the Complainant. Date of hearing: 1st July, 2008. JUDGMENT ZUBDA-TUL-HUSSAIN, J.

On the complaint of one Ahmad Nawaz the case F.I.R. No. 286 of 2007 dated 12-6-2007 under section 302/34, P.P.C. was registered at Police Station Baghdad-ul-Jadeed, Bahawalpur: The investigation of the case was still pending when an application under section 19(3) read with section 12 of the Anti-Terrorism Act, 1997 was filed by the father of the deceased before the learned Special Judge Anti-Terrorism Court seeking its indulgence for summoning the record of the said criminal case and its trial. This application was accepted through the order dated 19-7-2007, the vires whereof are impugned in the present writ petition.

2. The contention of the learned counsel for the petitioner is that the impugned order of the learned Special Judge Anti-Terrorism Court is tantamount to interference with the investigation as the local police has submitted a report under section 173, Cr.P.C. without introducing any provision of the Anti-Terrorism Act, 1997. It is further contended that the order was passed at the back of the petitioner who was thus condemned unheard whereas the application as well as the impugned order both were outside the purview of the Anti-Terrorism Act, 1997.

3. It has specifically been argued that neither there was any element of terror in the alleged offence nor it created any fear or insecurity amongst the public-at-large so as to attract the provisions of sections 6 and 7 of the Anti-Terrorism Act, 1997.

4. The question whether the circumstances of the case give rise to any fear or insecurity amongst the public-at-large or the element of terror was made out of the facts, is a question of fact which of course cannot be dilated upon by this Court in the present proceedings and at the present stage.

5. The moot point in this case is whether in a case in which the proceedings have been taken by the local police under the ordinary law, can the Anti-Terrorism Court pass a direction to the police for inserting any provision of the Anti-Terrorism Act, 1997 in the case or can it otherwise call for the record and take cognizance of the case. There is no doubt that the father of the deceased had moved an application before the Anti-Terrorism Court under sections 19 and 12 of the Anti-Terrorism Act, 1997, yet that application by itself could neither invest the learned Anti-Terrorism Court with jurisdiction to show indulgence in the matter or to assume the jurisdiction in the garb of section 19(3) ibid. The reason therefor, is apparent on the face of the provisions of section 19(3) which may before proceeding further, be reproduced with benefit. "Section

19. Procedure and powers of (Anti-Terrorism Court). (1)

(1-a)

(2)

(3) The Anti-Terrorism Court may directly take cognizance of a case triable by such Court without the case being sent to it under section 190 of the Code."

6. It of course follows from the aforesaid provision that the learned Special Court under the Anti-Terrorism Act, 1997 can directly take the cognizance of a case triable by it without adhering to the provisions of section 190, Cr.P.C. Subsection (3) of section 19 is a conscious deviation from the ordinary procedure laid down by the Criminal Procedure Code for the congnizance of the cases. There is no doubt that by virtue of section 190, Cr.P.C. in the first instance on a report under section 173, Cr.P.C. the concerned Magistrate takes necessary cognizance of the case and then, if it is not triable by him, forwards the same to the Court of competent jurisdiction but the said section 19 (3) of Anti-Terrorism Act, 1997 has provided an exception to this rule whereby the procedure provided under the Cr.P.C. is bypassed for the purpose of expediency.

7. The powers available to the Special Court under section 19(3) ibid, as observed by the Honourable Division Bench of this Court in Muhammad Azam's case PLD 2008 Lahore 63, do not provide jurisdiction to it for fishing out the case from different police stations and directing the agency to submit challan after incorporating the scheduled offence as the facts of the case disclose the commission of such offence.

8. The impugned order is, therefore, liable to be set-at-naught on this sole ground. All the same it goes without saying that the police is not the final authority to determine the jurisdiction of the Court where such case shall be triable. The police by forming its own opinion may submit the chalan/report under section 173, Cr.P.C. before the concerned Court but it shall then be for such Court to form an opinion that the material available on the record is or is not sufficient to attract the provisions of a scheduled offence. On the basis of such opinion or inference the Court where the challan is submitted is competent to pass an order for taking such measures whereby the challan may be sent to or submitted to the Court having jurisdiction in the matter.

9. For what has been discussed above, we are of the opinion that the learned Special Judge, Anti-Terrorism Court had no jurisdiction to pass a direction to the Investigating Officer to apply section 7 of the Anti-Terrorism Act, 1997 to the case in hand and submit the challan to it (Judge Anti-Terrorism Court). The writ petition is accordingly allowed, G the impugned order dated 19-7-2007 of the Judge Anti-Terrorism Court Bahawalpur is set aside, and the Investigating Agency is directed to submit a report under section 173 Cr.P.C. before the Court of ordinary jurisdiction who shall on the basis of the record proceed further or pass order thereon in accordance with law. N.H.Q./M-258/L Petition allowed.