2011 M L D 470
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
MUHAMMAD AZAM ---Petitioner
Versus
THE STATE ---Respondent
Criminal Revision No. 80 of 2010, decided on 6th December, 2010.
Criminal Procedure Code (V of 1898) ---
----S. 540---Penal Code (XLV of 1860), S.302 ---Qatl-e-amd---Power of the court to
summon/recall witnesses ---Trial Court dismissed petitioner 's/complainant's application for,
recalling the witnesses who had resiled from their statements ---Validity ---Section 540,
Cr.P.C. vested the court with vast powers to summon, recall, re -examine and record the
evidence of persons in addition to the witnesses produced and examined by the prosecution
or defence at any stage of the inquiry, trial or other proceedings in order to arrive at a just
decision ---Trial Court failed to exercise powers vested in it---Witnesses in question were
required to be confronted with their statements for fair decision of the case ---
Application/petition was allowed.
Muhammad Taj Muhammad Mengal for Petitioner.
Zahoor Shahwani, P.G. for the State.
ORDER
MRS. SYE DA TAHIRA SAFDAR, J .---Instant petition has been filed by the petitioner with
contention that two eye -witnesses namely Rubina and Afsana were produced before the
court, who got recorded their statements, wherein they deviated from their statements earlier
recorded before Judicial Magistrate and also from their statements recorded under section
164, Cr.P.C. But the District Attorney failed to make request for declaring them as hostile at
said stage nor their earlier statements were confronted to them. It is his contention, that the
case of prosecution rests on statement of these two eye -witnesses. He further contended that
he also got knowledge about the fact that accused persons approached Additional District
Attorney and on his instigation the said two witn esses retracted from their previous
statements. Both the witnesses are required to be re -called as the offence committed is
murder of two young boys, a heinous crime. The trial Court without any justifiable reason
rejected the application, thus the impugne d order dated 7 -6-2010 is liable to be set aside. He
prayed that the mentioned witnesses be re -called for re -examination and he (petitioner) be
allowed to cross -examine them.
Learned counsel for the petitioner while arguing the matter relied on grounds t aken and
contention raised in main revision petition. While learned Assistant Prosecutor -General
supported the contentions raised by the counsel for the petitioner, while despite service
counsel for respondent No.2/ accused remained absent. During course o f arguments learned
counsel for the petitioner placed reliance on judgments reported in 2002 MLD page -477 in
criminal revision petition titled as Najam -ul-Hassan v. State, 2002 MLD page -1978 in
criminal revision application tilted as Muhammad Ismail v. Sta te and 2002 PCr.LJ page 78
Lahore in criminal revision titled as Sharafat Hussain v. State. The petitioner is aggrieved of
order of trial Court made on 7 -6-2010, whereby the application filed by the petitioner, being
complainant of the case, for re -calling of the witnesses, who were turned hostile with
requested to re -examine and cross -examine them, was not allowed on the occasion that at the
relevant time that Assistant District Attorney was at liberty to declare the witnesses as hostile,
but he did not bo ther to do so. Further, the trial Court held that prosecution cannot be allowed
to rectify the error or fill up the lacuna. Section 540, Cr.P.C. is relevant, which states as
under:
"540. Power to summon material witness or examine persons present .---Any court
may, at any stage of any inquiry, trial or other proceeding under this Code, summon
any 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."
This section empowers a court, at any stage of any inquiry, trial or other proceedings held
under this Code, either to summon a person as witness or examine any person present, though
he may not hav e been summoned as such. The court is further empowered to re -call and re -
examine any person already have been examined by the court. In addition this section further
empowered the court to summon, examine, recall and re -examine any such person whose
evide nce appears to be essential to the just decision of the case. This provision of law
empowered the court with vast powers for summoning the persons and recording their
evidence in order to arrive to a just decision, in addition to the witnesses produced and
examined by the prosecution or in defence.
In present case the witnesses in question namely Mst. Rubina daughter of Abdul Aziz and
Mst: Afsana daughter of Abdul Aziz appeared before the court as prosecution witnesses
Nos.4 and 5, while got recorded thei r statements, that too in presence of Assistant District
Attorney, who was conducting the case on behalf of the State. This fact is also apparent from
record that both these witnesses were produced before Judicial Magistrate, Soorab before
commencement of trial whereby their statements were recorded. Though the petitioner has
asserted that both the witnesses got recorded their statements under provisions of section 164,
Cr.P.C, as copy of challan has not been annexed with the petition, therefore, this fact cannot
be ascertained. Apart from the same, though it is professional duty of the Assistant District
Attorney to pursue the case as required by law. But it is also duty of the court, conducting the
proceedings, to observe the provisions of law and exercise the powers and discretion vested
in it in judicial manner to meet the ends' of justice. Though there are no two views that in
garb of exercise of powers under this section the prosecution or even defence cannot be
allowed to fill up the lacunas, but admin istration of justice is the main thing, which is
required to be kept in sight by the court while discharging its duties. But in present case the
trial Court has failed to observe the same. The powers vested in it were not exercised in time.
Both the witnes ses are the key witnesses, as they have alleged to witness the incident,
whereby two young persons lost their lives. As there is assertion about recording of statement
by these two witnesses wherein variation are asserted, therefore, these statements were
required to be confronted to these witnesses in order to ascertain the true facts and also to
arrive on just decision.
Keeping in view the above discussion it seems just and proper to set aside the impugned
order dated 7 -6-2010 of Additional Sessions Jud ge, Kalat, while the application for re -calling
the witnesses is allowed. The trial Court is directed to call Mst. Rubina daughter of Abdul
Aziz and Mst. Afsana daughter of Abdul Aziz and get recorded their statements as Court
witnesses, thereby allowing p rosecution/ complainant counsel and defence counsel to cross -
examine them, this will meet the ends of justice. Petition is disposed of in above terms.
A.R.K./116/Q Disposed of.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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