Muhammad Awais vs The State, etc.
This criminal revision petition challenged an order of the Additional Sessions Judge, Faisalabad, which dismissed the petitioner's application under Section 540 of the Code of Criminal Procedure 1898 to recall a formal prosecution witness for re-examination. The petitioner argued that re-examination was necessary to address discrepancies regarding the chain of custody of evidence. The respondent contended that the defence had previously been afforded an opportunity to cross-examine the witness but deliberately declined, suggesting the application was a dilatory tactic. The Court held that while Section 540, Code of Criminal Procedure 1898 confers power upon the court to recall witnesses, this power is discretionary and intended to ensure a just decision, not to allow parties to fill lacunae in their case or rectify tactical errors made during the trial. Finding that the petitioner failed to justify the failure to cross-examine the witness when originally presented, and noting that the witness was merely a formal witness, the Court dismissed the revision, affirming that trials must proceed to conclusion without endless re-examinations.
- Can a witness be recalled for re-examination under Section 540 of the Code of Criminal Procedure 1898 solely to fill a lacuna in the evidence?
- Is the power of the court to recall a witness under Section 540 of the Code of Criminal Procedure 1898 mandatory or discretionary?
- Does the failure of the defence to cross-examine a witness when originally presented preclude a subsequent application to recall that witness for cross-examination?
- Section 540, Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
- Qanun-e-Shahadat Order 1984
ORDER
' ERUM SAJAD GULL, J. -- The instant criminal revision is directed against the order dated 4.7.2015 passed by the learned Additional Sessions Judge, Faisalabad whereby the application moved by Muhammad Awais/petitioner under Section 540, Cr.P.C. For reexamination of Abdul Sattar, Constable/PW-9 was dismissed.
2. Learned counsel for the petitioner has argued that Abdul Sattar, Constable/PW-9 received the parcel of the empties on 22.7.2013 and deposited it in the Forensic Science Laboratory on 24.7.2013 but no statement under Section 161, Cr.P.C. Was recorded by the Investigating Officer; that as per statement the parcel of the pistol was received by Abdul Sattar/PW-9 on 30.7.2013 and the same was deposited on 31.7.2013 but the parcel was submitted on 16.8.2013 after a delay of 16 days; that the re-examination of Abdul Sattar, Constable/PW-9 is essential for the just and fair conclusion of the trial, therefore the impugned order be set aside and the petitioner may be allowed to cross- examine the formal prosecution witness Abdul Sattar, Constable/PW-9.
3. Learned DDPP assisted by the learned counsel for the respondent No, 2 has argued that the defence counsel was given an opportunity to cross-examine the formal witness PW-9 Abdul Sattar, Constable, but deliberately the defence counsel did not avail the opportunity to cross-examine the witness, so that this application could be moved to delay, the trial. As this criminal revision is without merits, hence be dismissed, so that the Trial Court be concluded.
4. Arguments have been heard and record perused.
5. In the Code of Criminal Procedure, 1898 and in the Qanun-e-Shahadat Order, 1984, there is no provision to recall a witness for re-examination. This provision has deliberately not been given, as if it was given then there would be no end to the trial and witnesses would have been re-called for re-examination to correct any portion of their statement not favourable to either party. The discretion to summon a material witness has been left to the Court under Section 540, Cr.P.C. This section is reproduced as under:- "Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case."
' The afore-mentioned section has two parts. In the first part, discretion is with the Court while the second part is mandatory. The purpose of Section 540, Cr.P.C. Is to empower the Court with ample of powers to ensure that the Court digs out the truth during trial, so that no innocent person is punished. If the Court is of the view that the evidence of a witness be recorded in order to reach a just conclusion of the case, the Trial Court has the powers to even re-examine any witness, but no witness can be recalled for examination to fill the lacuna by the defence or the prosecution.
6. Witnesses can only be recalled for examination in exceptional cases where interest of justice so demands to rectify an obvious mistake. On perusal of the record, it has transpired that on 23.4.2015 pr. Kishwar Naheed was examined as PW-8 and was also cross-examined on the same day. The petitioner/accused was given an opportunity to cross-examine the formal witness Abdul Sattar, Constable/PW-9 on 23.4.2015 but the defence counsel chose not to cross-examine the said formal witness. The petitioner/accused has failed to satisfy this Court, as to why the defence counsel did not cross-examine the witness even though an opportunity was provided at the relevant time. No prosecution witness can be summoned rur further cross-examination just to fill in the lacuna by any party. If this is allowed, trials will never come to an end. The revisional jurisdiction of this Court can be exercised only when there are exceptional circumstances and the order impugned is, perverse or suffering from any type of infirmity.
7. The statements of all the witnesses have been recorded and the case is fixed for final arguments.
The witness to be re-called for examination is a formal witness and by not re-calling him it will not amount to miscarriage of justice in any way. No illegality has been pointed out in the order impugned.
8. As reiterated above, the criminal revision being devoid of merits, is dismissed and the order dated 4.7.2015 passed by the learned Additional Session's Judge, Faisalabad is upheld. .