ADNAN AHMED KHAN vs THE STATE
This criminal revision application challenges the trial court's dismissal of an application filed under Section 540 of the Code of Criminal Procedure 1898, which sought to recall a prosecution witness for further cross-examination. The core legal question was whether the defense counsel, having previously cross-examined the witness, could recall them to confront them with a statement recorded under Section 161 of the Code of Criminal Procedure 1898, specifically to highlight contradictions. The applicant argued that the witness, a minor victim, had not been confronted with his previous statement due to the counsel's inadvertence. The High Court held that the application should be allowed to the limited extent of recalling the victim witness solely for the purpose of confronting him with his Section 161 statement. The Court established the principle that while trial courts must prevent the harassment of witnesses, particularly minors, the interests of justice require allowing the recall of a witness for the specific purpose of confronting them with previous statements if such confrontation was omitted due to inadvertence during the initial cross-examination.
- Can a prosecution witness be recalled for further cross-examination to confront them with a statement recorded under Section 161 of the Code of Criminal Procedure 1898?
- Does the trial court have the discretion to allow the recall of a witness if the defense counsel inadvertently failed to confront them with a previous statement?
- What measures should a trial court take to prevent the harassment of a minor witness during recall for cross-examination?
- Section 540, Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
ORDER
1. Through this Criminal Revision Application learned counsel for the applicant seeks recall of prosecution witness for further cross-examination. Application under section 540, Cr.P.C. Which was moved before trial Court was dismissed on the ground that once an opportunity is given to the defence counsel to cross-examine at length he is not entitled to seek recall of the witnesses.
2. ' Counsel for the applicant contended that the applicant only intends to confront the witness with the statement made. Under section 161, Cr.P.C. Only to point out the contradictions between the Examination-in-Chief and such statement. He further contends that in the impugned order it has 'been wrongly stated that the witnesses have already been confronted with the 161, Cr.P.C.
3. Statement.
4. ' Learned counsel for respondent has vehemently opposed the grant of this application on the ground that sufficient opportunity was given to the defence counsel and they want to harass the witness by subjecting him for further cross-examination, which might shutter the case the prosecution as one of the witnesses who is also victim is only seven years of age.
5. ' Learned counsel for the applicant in reply contended that he does not seek recall of all the witnesses as has been prayed in his application but only the witness who is also victim namely Arsalan be recalled for cross-examination. He contends that the purpose of recalling Arsalan is only to confront him with 161, Cr.P.C. Statement. In support of his contention he has relied upon 1991 PCr.LJ 877. In this judgment it was held that through inadvertence of defence counsel, the witness of the prosecution was not confronted with his previous statement. We have examined the cross- examinating of witness Arsalan and found that he was not confronted with his previous statement.
6. Hence this application is allowed only to the extent that the victim Arsalan shall be recalled for cross-examine only for the purpose of confronting the statement made under section 161, Cr.P.C. In case the defence counsel seek unnecessary I adjournment and do not proceed with the cross- examination of Arsalan, then the opportunity to cross-examine him again shall stand recalled.
7. Respondent Apprehends that Arsalan is minor boy of seven years of age and he will be harassed.
8. This apprehension would be taken care of by the trial Court itself as no one is be unnecessary harassed.
9. ' This application is allowed to extent stated.