Uturn of a Witness through Cross Examination

PLJ 2019 Cr.C . 205 (DB ) [Lahore High Court, Lahore] Present : Sardar Muhammad Sarfraz Dogar and Farooq Haider , JJ. STATE--Petitioner versus AASHIR NADEEM--Respondents Crl . Appeal No. 212430 of 2018, decided on 10.1.2019. Criminal Procedure Code, 1898 (V of 1898)-- ----S. 540-- Qanun -e- Shahadat , (10 of 1984), Arts. 132/133--Application under Section 540, Cr.P.C . for re-examination of PW has been dismissed--Appellant just wants to have volte-face i.e. U-Turn of said witness through re-examination and thus to pollute sanctity attached to proceedings comprising upon recording of statement of a witness on oath by trial Court, which statement was duly read over and acknowledged as correct by said witness and also having cover of Article 129(e) of Qanoon -e- Shahadat , 1984--Such intended attempt by appellant cannot be permitted because it amounts to polluting process and opening flood gates on subject--Even otherwise, there is a scheme in law for recording statement of witness incorporated in Article 132 and 133 of Qanoon -e- Shahadat , 1984--Articles of Qanoon -e- Shahadat , 1984 clearly show that first of all examination-in-chief shall be recorded, which will be followed by cross-examination and thereafter re-examination--In this case, only examination-in-chief has been recorded and cross-examination has not yet been recorded, so, there is no occasion for re-examination can only be directed to explanation of matter referred to in cross-examination and not regarding any matter deposed in examination-in-chief and in this regard, Article 133(3) of order can be referred advantageously--Section 540, Cr.P.C . cannot be allowed to be exercised in such circumstances--Appeal was dismissed. [Pp. 206, 207 & 208] A, B & C Mr. Muhammad Irfan Malik , Special Prosecutor for ANF. Date of hearing: 10.01.2019. Order Through instant appeal, appellant has challenged the vires of order dated 26.04.2018 passed by learned Judge, Special Court CNS, Lahore, whereby application under Section 540, Cr.P.C . for re-examination of Mujtaba Mehdi (PW-6) has been dismissed. 2. After hearing learned law officer and perusing the record, it has been observed that Mujtaba Mehdi , Inspector appeared as PW-6 during trial of the case, his examination-in-chief was recorded on 06.06.2015 wherein he categorically stated that recovery memo. Ex.PB was attested by Muhammad Ehsan /ASI and Mubeen /C, and cross-examination was reserved. Then after lapse of about one year on 26.5.2016, an application was moved by the Special Prosecutor for ANF before the learned trial Court for correction of name of aforementioned attesting witnesses, which was allowed vide order dated 03.01.2018; said order was assailed by the respondent before this Court through Crl . Appeal No. 153570/2018 titled as “ Aashir Nadeem versus The State” which was allowed and order dated 03.01.2018 was set aside vide judgment dated 06.02.2018 by this Court. Relevant portion of the judgment is hereby reproduced as under: “5. After hearing learned counsel for the appellant, learned DPG and going through the impugned order we have noted that reasons recorded by learned trial Court for allowing the request of prosecution were not valid. PW-6 in his statement categorically mentioned the names of recovery witnesses as Muhammad Ehsan /ASI and Muhammad Mubeen /C. It cannot be a typographical mistake due to typing work such as copy and paste. Allowing such an application would definitely prejudice the case of accused person. A benefit coming out from statement of prosecution witness, if any, cannot be simply taken back. Cross-examination on the said witness is yet to be recorded; prosecution had also an option to move application for reexamination of the witness as per law. In the above backdrop, in our view, impugned order is not based on sound reason and is liable to be set aside. Consequently, this appeal is allowed, and impugned order is set aside. The trial Court may proceed with the case further in accordance with law” 3. Thereafter, appellant moved application before learned trial Court under Section 540, Cr.P.C . for re- examination of Mujtaba Mehdi (PW-6), which has been dismissed vide impugned order dated 26.04.2018. 4. Learned Special Prosecutor for ANF/appellant could not point out any illegality in the impugned order. As a matter of fact, all the grounds, which have been taken by the appellant in the application under Section 540, Cr.P.C . before the learned trial Court and now again agitated before this Court are the same/identical, which were taken by the appellant in the aforementioned appeal, which have been expressly dealt with and turned down/ negated by this Court vide above mentioned judgment dated 06.02.2018 passed in Crl . Appeal No. 153570/2018. Even otherwise, appellant just wants to have volte-face i.e. U-Turn of said witness through re-examination and thus to pollute the sanctity attached to the proceedings comprising upon recording of statement of a witness on oath by the learned trial Court, which statement was duly read over and acknowledged as correct by said witness on 06.06.2015 and also having cover of Article 129 (e) of the Qanoon -e- Shahadat Order, 1984. Such intended attempt by the appellant cannot be permitted because it amounts to polluting the process and opening the flood gates on the subject. Even otherwise, there is a scheme in law for recording statement of the witness incorporated in Articles 132 and 133 of the Qanun -e- Shahadat Order, 1984, which are hereby reproduced for ready reference: 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 examination. (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 . (Emphasis added) Above reproduced Articles of the Qanoon -e- Shahadat Order, 1984 clearly show that first of all examination-in-chief shall be recorded, which will be followed by cross-examination and thereafter re-examination. In this case, only examination-in-chief has been recorded and cross-examination has not yet been recorded, so, there is no occasion for re-examination of the witness. Furthermore, re-examination can only be directed to the explanation of matter referred to in cross-examination and not regarding any matter deposed in examination-in-chief and in this regard, Article 133 (3) of the Order (ibid) can be referred advantageously. Section 540, Cr.P.C . cannot be allowed to be exercised in such circumstances. 4. In view of the above, instant appeal is without any merit and the same is dismissed in limine . (K.Q.B.) Appeal dismissed