2013 PLP 888 (MLD)

MUHAMMAD ANWAR KHAN KASI, J.

The petitioner has challenged the order dated 27-11-2012, passed by learned Sessions Judge Islamabad, whereby petitioner-complainant's application under section 540, Cr.P.C. for re-calling the Prosecution-Witness No.1 [Dr. Muhammad Farrukh Kamal] was dismissed on the ground that the application after 3-1/2 year for re-calling of the said witness lacked merits as the lacunas in prosecution case cannot be filled.

2. It is inter alia contended that P.W.1, at the time of recording of his evidence, failed/omitted to get exhibit the MLR regarding the injury received by the complainant, therefore, his re-calling and re-examination would be in the interest of justice. Learned counsel relied upon case-laws cited as 2002 PCr.LJ 78, 1995 PCr.LJ 730, PLJ 2008 FSC 200, 1992 PCr.LJ 729 and 2006 PCr.LJ 110 which are on the point that the Court may at any stage of an inquiry, trial or other proceedings under the Cr.P.C. may summon any person as a witness or examine any person in attendance though not summoned as a witness or recalled and re-examine any person already examined. The purpose to exercise such power is the safe administration of justice and its purpose is neither to advance the case of defence nor upheld the cause of the prosecution.

3. On the other hand, learned Standing Counsel resisted the petition by stating that re-calling and re-examination of a witness at this stage cannot be allowed as it would delay the trial of the case.

4. Both the learned counsel for private respondents, in-rebuttal, strongly opposed the petition. Their main ground was that the purpose of section 540, Cr.P.C. is not to fill the lacuna in the prosecution case nor any error can be rectified only on the basis that there was an omission in the previous statement of PW. It is next submitted that even otherwise the application after more than three and a half year is not maintainable when the case has already concluded.

5. I have considered the arguments advanced by both the sides and also gone through the case-laws, besides the law on the subject.

6. According to the prosecution version, the complainant had allegedly received injuries and was medically examined, but P.W.1 [Dr. Muhammad Farrukh Kamal] in his statement failed/omitted to get exhibit MLR of the complainant [petitioner herein] and also failed to give his statement to this effect. This omission, in my view, cannot be considered as an improvement in the case of prosecution while under section 540, Cr.P.C., the Trial Court at any stage can summon any person as a witness or recall or re-examine any person already examined, if his evidence appears to be essential to the just decision of the case.

7. The circumstances of the present case warrant re-calling of the said witness for recording of his evidence to the extent of MLR of the complainant and his examination. On the other hand, the respondents shall, of course, have a right of cross-examination.

8. While forming the view [supra] I am fortified by the case of "Ansar Mehmood v. Abdul Khaliq and another (2011 SCMR 713)" wherein the Hon'ble apex Court in a case which was at the stage of final arguments, held as under:-- "Powers of Court under S. 540, Cr.P.C.

Scope

Material witness, summoning of

Limitation

Close of prosecution evidence-Complainant filed application to produce two doctors and report of medical board at the stage of final arguments

Trial Court dismissed the application on the ground of its being filed at belated stage

Order passed by Trial Court was maintained by lower Appellate Court in exercise of revisional jurisdiction and also by High Court exercising constitutional jurisdiction

Validity

Powers of Court under section 540, Cr.P.C. were the widest in its amplitude

Court was obliged to summon evidence of material witness, whose evidence was essential for just decision

Court while exercising power under section 540, Cr.P.C. had to guard itself from exploitation and should keep guiding principle, what the ends of justice demanded and to avoid filling gaps in negation of justice

When Court had arrived at the conclusion that evidence was essential for just decision, then delay in moving application was not relevant

Court itself empowered even without application from any of the parties to summon witness deem essential for just decision by applying its judicial mind

Medico-Legal Certificate was issued by Medical Officer and Radiologist opined fracture on the person of injured

Authenticity of Medico-Legal Certificate was questioned and Medical Board was constituted at the instance of accused and Medical Board rendered its opinion

Both the documents were authored by Medical Officers in discharge of their functions, genuineness of which could not be doubted

Accused would have ample opportunity to discredit the evidence on the touchstone of cross-examination

Supreme Court set aside the orders passed by all the Courts below and allowed the summoning of doctors."

9. In view of above, if the application for re-examination of P.W.1 is allowed, no prejudice shall be caused to the prosecution.

10. Resultantly, criminal revision petition is allowed and in consequence thereof, order of the learned Trial Court dated 27-11-2012, is set aside with direction to re-summon and re-examine P.W.1 qua the MLR of complainant by extending opportunity of cross-examination to the respondents-accused. Since the case is at final stage, it is expected that learned counsel for the parties would extend full co-operation to the learned Trial-Court for completing the task. It is also expected that the learned Trial Court shall decide the case within a period of one month from the receipt of this order under intimation to this Court through the Registrar.

11. Revision Allowed. Impugned-Order set aside. MWA/A-28/Isl Revision allowed.