SARDAR alias SARDARA vs THE STATE
This criminal revision petition under Section 435/439 of the Code of Criminal Procedure 1898 challenges the legality of an order passed by the Additional Sessions Judge, Sahiwal, which allowed an application for re-summoning and re-examining a prosecution witness at the final stage of the trial. The core legal question concerns the legality of conducting a witness re-examination in the absence of the petitioner's counsel and in violation of the prescribed procedure for re-examination under the law of evidence. The Lahore High Court held that the impugned order was legally flawed because it condemned the petitioner unheard and violated Article 137 of the Qanoon-e-Shahadat, 1984, as the re-examination was conducted in the absence of defense counsel and recorded in question-and-answer form rather than a narrative form. The revision petition was consequently accepted, the impugned order was set aside, and the lower court was directed to conduct the re-examination in accordance with law after affording a proper hearing opportunity.
- Whether re-examination of a witness recorded in the absence of the petitioner's counsel violates the principle of natural justice?
- Does recording a witness's re-examination in question-and-answer form instead of a narrative form violate Article 137 of the Qanoon-e-Shahadat, 1984?
- Can an order allowing the re-summoning of a witness at a belated stage be set aside when procedural infirmities are found?
- Section 435, Code of Criminal Procedure 1898
- Section 439, Code of Criminal Procedure 1898
- Article 137, Qanoon-e-Shahadat, 1984
ORDER
Through this revision petition filed under section 435/439, Cr.P.C., the petitioner has called in question the legality of an order dated 28-10-2003 passed by the learned Additional Sessions Judge, Sahiwal whereby the application made by Nasir Ahmed respondent No.2 for re-summoning lady Doctor Uzma Ashraf P.W.2 for her reexamination was allowed.
2. ' It is argued by the learned counsel for the petitioner that the impugned order passed by the learned trial Court is against law; that the impugned order was passed without affording an opportunity of hearing to the learned counsel for the petitioner that the mode of re-examination of the aforesaid P.W. Was not warranted by law, therefore, the same may be set aside.
3. Conversely the learned State Counsel assisted by the learned counsel for the complainant strongly repelled the contentions raised by the learned counsel for the petitioner contending that right of cross-examination is reserved, therefore, the petitioner got no grievance for filing the instant petition which merits dismissal and supported the impugned order passed by the learned trial Court.
3(a). Arguments heard. Record perused.
4. It evidences from record that the trial against the petitioner wasat final stage when respondent No.2 submitted an application for re-summoning the aforesaid P.W. For her re-examination. The learned counsel for the petitioner during the course of his arguments pointed out that the application was filed at a belated stage, in order to fill in the lacuna and gapes left by the prosecution in the statement of P.W.2. He further went on arguing that it is a well-settled law that the reexamination of the P.W. Is always made not from the examination inchief of the P.W. But instead of the same, the P.W. May be called if anything is required to be clarified which has come out during the cross-examination. Be that as it may, it has also come on the record that reexamination of the. P.W. Was recorded in the absence of the learned counsel for the petitioner especially when an application was made by the learned counsel for the petitioner for adjournment. In this view of the matter the contention of the learned counsel for the petitioner is correct that the petitioner has been condemned unheard. Although the learned State Counsel during the course of his arguments pointed out that the right of cross-examination has been reserved yet the fact remains that the mode for re-examination in the absence of the learned counsel for the petitioner is also violation of Article 137 of Qanoon-e-Shahadat, 1984. The bare reading of the re-examination is also indicative of the fact that the same has been recorded in the form of question and answer and not in narrative form which is clear cut violation of the aforesaid Article. In view of the abovesaid infirmities the impugned order does not stand in the eye of law which call for interference by. This Court.
5. Resultantly, the revision petition is accepted, the impugnedorder is set aside and the learned lower Court is directed to re-examine the aforesaid P.W. According to the procedure laid down by law after affording an opportunity of hearing to the learned counsel for the petitioner.