IRFAN QADRI vs ANTI-TERRORISM COURT NOM, KARACHI and another
This criminal revision application was filed against an order of the Anti-Terrorism Court, Karachi, which dismissed the applicant's request to recall five prosecution witnesses for further cross-examination in ongoing special cases. The applicant contended that the previous defence counsel failed to cross-examine these witnesses on material points, specifically regarding an alleged agreement between the complainant and the accused. The core legal question was whether the trial court erred in refusing to recall witnesses under the court's discretionary power to summon witnesses for further examination. The High Court upheld the trial court's decision, holding that the witnesses had already been cross-examined at length, including on the specific point of the agreement. The Court emphasized that recalling witnesses is an exceptional measure reserved for rectifying obvious mistakes or omissions to ensure justice, not a routine procedure to fill lacunae in the defence case. As the applicant failed to provide cogent reasons for the necessity of re-examination or demonstrate that the previous failure was beyond their control, the revision application was dismissed for lacking merit.
- Can a trial court recall prosecution witnesses for further cross-examination merely because a previous defence counsel failed to cover certain points?
- Is the power to recall witnesses under Section 540 of the Code of Criminal Procedure 1898 intended to allow parties to fill lacunae in their case?
- What criteria must be met to justify the recall of prosecution witnesses for further cross-examination in a criminal trial?
- Section 540, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
ORDER
' NAIMATULLAH PHULPOTO, J.---Through this Criminal Revision Application, the learned Advocate for applicant Irfan Qadri seeks recall of prosecution witnesses namely Sabiha Shahnaz, Shakeeluddin Khan, Mohammad Azeem Qureshi, Saifur Rehman and Waqas Ahmed for further cross- examination in Special Cases Nos. 41 to 43 of 2011. Application under section 540 Cr.P.C. Was moved before learned Judge ATC No.II, Karachi, the same was rejected vide order dated 20th May-2013.
2. Learned Advocate for the applicant/accused contended that he intends to cross-examine the prosecution witnesses particularly complainant with regard to the agreement arrived at between the complainant and accused. He has submitted that previous defence counsel did not cross- examine the witnesses on material points. Lastly he has contended that trial Court has illegally dismissed the application while holding that application has been filed to linger on the matter.
3. Mr. Khadim Hussain learned D.P.G. Present in the Court waived notice and argued that prosecution witnesses have been cross-examined at length on all material points including the point of Agreement. He has opposed the Revision Application.
4. After hearing the learned counsel for the parties, we have perused the depositions of the prosecution witnesses named above and impugned order. Relevant portion of the order dated 20th May 2013 passed by learned A.T.C. No.II, Karachi is produced as under:-- "14. The application in consideration has just stated to recally the five witnesses as the same could not be cross examined by the previous advocate of the applicant and in order to meet the end of justice to re-examine them. It is not true. The five witnesses examined in chief was recorded and cross examination was also done at length on them. It is not true that they could not be cross examined. The application does not show what was the material points on which the cross examination was not done. The justice has to be done to both the parties the prosecution as well as the accused persons. I have already stated that the abductee Shakeeluddin was cross examined even on the point that there was an agreement executed between Irfan Qadri and him and which he had denied. It was very important for the applicant/accused to, prevail upon the Court why it has become vital to re-cross examine the witnesses after more than one year. The application has no force therefore it is rejected."
5. It appears that prosecution witnesses have been cross-examined at length, it is reflected in the impugned order that there was cross-examination even on the point of agreement. Re- examination of witness may be ordered to rectify an obvious mistake or omission for arriving at a just decision in the matter. Learned counsel for the applicant has failed to satisfy the Court about the existence of such circumstance to justify further cross-examination of the witnesses. Witness can only be recalled for examination in exceptional and in rare cases, where interest of justice so demands but in the present case above named prosecution witnesses have been cross-examined at length. Case is almost complete. Learned Advocate for the applicant yet has an opportunity to produce the agreement in the statement of " the accused recorded under section 342, Cr.P.C., if desired so. Applicant/accused must have come up before this Court with cogent reasons as to why defense counsel could not cross-examine the above witnesses on any material point at the relevant time. It was the duty of the counsel for the applicant/accused to make out a case that he could not cross-examine the above named witnesses for any reason beyond his control. No prosecution witness can be summoned for further cross-examination merely to fill in the lacuna by any party, if it is allowed in a routine matter, it would tentamount to opening of the flood gates without any end. No sufficient ground have been shown to recall above named witnesses for further cross-examination. Needless to emphasise that Revisional jurisdiction is restricted and narrower. No illegality in the impugned order has been pointed out. Consequently, Criminal Revision Application is without merit and the same is dismissed.