STATE through Muslim Khan vs MUMTAZ ALI
This criminal revision petition was filed by the complainant against an order of the Additional Sessions Judge, which rejected an application to summon two prosecution witnesses who had been previously abandoned by the complainant's former counsel. The core legal question was whether the trial court erred in refusing to summon these witnesses under the discretionary powers granted by the Code of Criminal Procedure. The Peshawar High Court held that while the court possesses ample powers under Section 540 of the Code of Criminal Procedure 1898 to summon any witness for a just decision, such discretion must be exercised judiciously. The Court observed that the witnesses were abandoned by the complainant's counsel nearly ten months prior, and the application was filed only after the prosecution had closed its evidence and the case was ripe for conclusion. The Court ruled that allowing the examination of these witnesses at such a belated stage, after the prosecution's case had been exposed through cross-examination, would be improper. Consequently, the revision petition was dismissed, affirming that the trial court's order was well-reasoned and legally sound.
- Can a complainant seek to summon witnesses previously abandoned by their counsel after the prosecution has closed its evidence?
- Does the court have the discretion to refuse an application to summon witnesses under Section 540 of the Code of Criminal Procedure 1898?
- Is it permissible to allow the examination of witnesses at a belated stage after the prosecution case has been exposed through cross-examination?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 540, Code of Criminal Procedure 1898
' ASSADULLAH KHAN CHAMKANI, J.---The petitioner being complainant of case F.I.R. No,176 dated 10- 6-2011 registered under sections 302/109, P.P.C. At Police Station Kabal, Swat, has filed the instant revision petition against the order dated 16-7-2012 passed by learned Additional Sessions Judge/Izafi Zila Qazi, Kabal, vide which the application of the complainant for summoning of witnesses was rejected.
2. Learned counsel for the petitioner submitted that initially the complainant was represented by another counsel, who had abandoned two important witnesses of the prosecution namely Noor Muhammad and Muhammad Amin that when the complainant engaged another counsel on 11-7- 2012 it was pointed to him that important witnesses have wrongly been abandoned by his ex- counsel, so, application for their summoning but the learned trial Court by not keeping in sight the provision of section 540, Cr.P.C. Rejected his application, therefore, the impugned order is illegal and liable to be set aside.
3. I have heard learned counsel for the petitioner and gone through the record.
4. Perusal of the record would reveal that the prosecution after the commencement of trial examined as many as fourteen witnesses and thereafter closed its evidence on 29-5-2012. Perusal of file further speaks that counsel for the complainant had abandoned the above said witnesses on 26-9-2011 and in this respect his statement has been recorded and duly signed by him. No doubt, under section 540, Cr.P.C. The court has ample powers to summon any witness for just decision of the case and even without any application of the parties but in the case in hand, the complainant's counsel has abandoned P.Ws, Muhammad Amin and Noor Muhammad being private witnesses on 26-9-2011 and after slumber on 3-7-2012, after about ten months, and that too, when statements of all the prosecution witnesses including the eye-witnesses were recorded duly cross-examined by the defence counsel, the complainant has filed the instant application, therefore, at this stage of the case, when the cross-examination of the prosecution witnesses has been exposed and the case is ripe, the complainant could not be allowed to examine the said witnesses, once abandoned by his counsel.
' The learned counsel for the petitioner was unable to point out any infirmity or legal error in the order of the trial court justifying interference by this court at this belated stage. The impugned order is well reasoned, according to the established principle of law and call for no interference.
' Hence, this criminal revision being devoid of any merits is dismissed as such.