P L D 2023 Balochistan 46
Before Abdullah Baloch and Rozi Khan Barrech, JJ
SAMIULLAH ---Petitioner
Versus
SPECIAL JUDGE ANTI RAPE/SESSIONS JUDGE, SARIAB DIVISION and 2 others --
-Respondents
Criminal Revision Petition No. 28 of 2022, decided on 15th December, 2022.
(a) Criminal Procedure Code (V of 1898) ---
----S. 540--- Power to summon material witness or examine person present ---Re-calling for
cross -examination ---Scope ---Engagement of new advocate is no ground for recalling any of
the witnesses for cross -examination ---Neither the defence nor the prosecution can be allowed
to fill the lacuna by re -summoning the witnesses under S. 540, Cr.P.C.---If this practice is
allowed, none of the trials would ever come to an end and such practice would amount to
opening floodgates.
(b) Criminal Procedure Code (V of 1898) ---
----S. 540 ---Power to summon material witness or examine person present ---Scope ---Section
540, Cr.P.C., is divided into two parts ---First part is discretionary, while the second part is
mandatory--- Powers under the second part can only be exercised when the Court is satisfied
that further cross -examination will be essential for the just decision of the case ---Section
540, Cr.P.C. imposes responsibility upon the Court that these powers must be exercised with
due care and caution ---Court cannot use these powers to advance the cause of the prosecution
or defense, but these powers are only meant to advance the cause of justice---Powers under S. 540, Cr.P.C. are not meant to fill in the gaps or lacunas left by the parties to the proceedings.
(c) Criminal Procedure Code (V of 1898) ---
----S. 540 ---Power to summon material witness or examine person present ---Scope ---Section
540, Cr.P.C. deals with three kinds of cases and invests the Court with the power to deal with them ---First case is of a person not examined by any party and not present in Court ---
However, such a person may be summoned by the Court to give evidence, in which case he will be summoned and examined by the Court ---Second case is of a person 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 and re -examine him ---Such 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.
(d) Criminal Procedure Code (V of 1898) ---
----S. 540---Qanun- e-Shahadat (10 of 1984), Art. 133---Order of examinations ---Power to
summon material witness or examine person present ---Scope ---Examination of a witness by
the party who calls him is called examination -in-chief ---Examination of a witness by the
adverse party is called cross -examination, and the examination of the witness after the cross -
examination by a party is re -examining ---Article 133 of the Qanun- e-Shahadat, 1984,
prescribes the order in which the witness is to be examined--- Article 133 states 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 ---Said 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 ---Term "already examined" as used in S. 540,
Cr.P.C. 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 Art. 133 of the Qanun- e-
Shahadat, 1984 has been followed--- Essential requirement is that the witness sought to be
recalled or re- examined under the provisions of S. 540, Cr.P.C. must have been already
examined.
Ghulam Wali Achakzai for Petitioner.
Date of hearing: 12th December, 2022.
ORDER
ROZI KHAN BARRECH, J. ---Through the instant criminal revision petition filed
under Sections 435 and 439, Cr.P.C., the petitioner/accused Samiullah, son of Muhammad Ali, has challenged the vires of the order dated 26.11.2022 passed by learned Special Judge Anti-Rape/Session Judge Sariab Division ("trial court") whereby the application filed by the
petitioner seeking summoning of Muhammad Sohail (PW -2) for further cross -examination
was dismissed.
2. Brief facts of the case are that the petitioner is facing trial in case FIR No. 81 of 2021
dated 30.10.2021 registered at Police Station Shaheed Manzoor Tareen in respect of offence
under section 377, P.P.C. After the formal investigation of the case, a report under section 173 of the Code of Criminal Procedure, 1898, was submitted before the trial court, wherein the petitioner was sent to face trial. The trial court framed the charge against the petitioner, to which he pleaded not guilty and claimed trial. The trial court proceeded to take evidence in support of the prosecution, and the prosecution got recorded the statements of as many as
seven witnesses. During the pendency of the proceedings, an application under section 540,
Cr.P.C. was filed by the petitioner/ accused before the trial court for summoning Muhammad
Sohail (PW -12), who is the victim of the occurrence, for further cross -examination. The
application was contested by the State.
After hearing arguments of learned counsel for the parties, the trial court dismissed
the application vide impugned order dated 26.11.2022, whereafter, the instant revision petition was filed.
3. The main crux of the arguments advanced by the learned counsel for the
petitioner/accused is that the trial court, while adjudicating the matter concerning the
application which was filed under section 540, Cr.P.C., has gone beyond the scope of the law
and while passing the impugned order the trial court did not consider the valuable rights of
the applicant/accused. He further argued that for complete justice, the re- summoning of PW2
for cross -examination is very much important so that the veracity of the above -mentioned
prosecution witness is thrashed and weighted through proper cross -examination because
earlier cross -examination conducted on the said witness by previous counsel is not proper
and the previous counsel has put no material question for digging out the actual facts for just
decision of the case. Lastly, he argued that for the ends of justice and proper adjudication,
the re- summoning and re -examination of above mentioned PW is very much important;
otherwise, the petitioner will suffer a significant loss.
4. We have heard learned counsel for the petitioner at a considerable length and have
gone through the record.
5. Perusal of the impugned order shows that the prosecution witness namely Muhammad
Sohail (PW -2), was already cross -examined by the learned counsel for the petitioner/accused.
It also appears from the order of the trial court that in this matter, all the prosecution
witnesses have already been examined, and the trial is about to conclude, but learned counsel
for the accused/petitioner filed the application under section 540 Cr.P.C for re -summoning of
the said witness as according to him the said witness was not appropriately cross -examined
by the previous advocate.
6. There is no cavil that section 540, Cr.P.C., is divided into two parts. The first part is
discretionary, while the second part is mandatory. The powers under the second part could
only be exercised when the Court is satisfied that further cross -examination will be essential
for the just decision of the case. Section 540, Cr.P.C, imposes responsibility upon the Court that these powers must be exercised with due care and caution. The court cannot use these
powers to advance the cause of the prosecution or defence, but these powers are only meant to advance the cause of justice. The powers under section 540, Cr.P.C., are not meant to fill in the gaps or lacunas left by the parties to the proceedings. 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 the power to deal with them. The first case is of a person not examined by any party and not present in Court. However, 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 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.
7. Articles 132 and 133 of the Qanun- e-Shahadat, 1984, deal with the 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."
8. 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 after the cross -examination by a party is re -examining. 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 is calling him so desires, it can get him re -
examined. The provision above, 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 Article 133 of the Qanun -e-Shahadat, 1984 has been
followed. 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.
9. The trial court's record shows that after recording the examination in chief, the
prosecution witness was properly cross -examined by the previous counsel for the
petitioner/accused. The record reveals that ample opportunity was given to the petitioner/accused for cross -examination of a witness. On engagement of a new advocate, the
petitioner/accused filed an application under section 540, Cr.P.C., for, recalling the
prosecution witness for his further cross -examination. The petitioner took the ground in his
application that the previous counsel could not properly cross -examine the prosecution
witness, and his defence was not put on record. The petitioner levelled the allegation regarding the competency of his previous counsel in the cross -examination of PW2. The
engagement of a new advocate is no grounds for recalling any of the witness for cross -
examination. It is established law that neither the defence nor the prosecution can be allowed to fill the lacuna by re- summoning of witnesses under section 540, Cr.P.C. If this practice is
allowed, none of the trials would ever come to an end, and this practice would amount to opening floodgates. In our considered view, there is no merit in the instant petition.
10. We have also gone through the impugned order passed by the trial court who
dismissed the above -said application by assigning cogent reasons within the scope of the law.
Therefore, we do not find any illegality or irregularity in the impugned order. Consequently, the instant petition is dismissed in limine.
SA/35/Bal. Petition dismisseThis 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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