SALEEM AHMAD NASEER vs THE STATE and anothers

' The petitioner who is facing trial in a case under section 161, P.P.C. Read with section 5 of the Prevention of Corruption Act, 1947, in the Court of Special Judge, Anti-Corruption, Gujranwala, had filed Constitutional Petition under Article 9 of the Provisional Constitution Order, 1981. When the petition came up for hearing before my learned brother Mr. Justice Lehrasap Khan on 25-11-1984, the request of the learned counsel for treating the Constitutional Petition as revision petition was granted. Thereafter, the petition was placed before me.

2. The evidence of the petitioner arose from the order, dated 12-12-1984 of the Special Judge whereby the learned Special Judge granted the application moved by Muhammad Ilyas complainant for his re-examination under section 540, Cr.P.C.

3. Muhammad Ilyas complainant had earlier appeared before the trial Court as P.W. On 18-11-1984 and while making the statement on oath had resiled from his previous statement. He was cross- examined by the Special P.P. With the permission of the Court. During cross-examination also, he denied his earlier allegation against the petitioner of having demanded Rs,100 and of having paid Rs,50.

4. Learned counsel for the petitioner contended that the order of the learned trial Court is not maintainable and that the learned trial Judge took a wrong view that a witness already examined can be recalled under section 540, Cr.P.C. For recording his statement afresh on the same aspect about which he already had deposed on solemn affirmation and had maintained the stand taken by him in examination-in-chief even during cross-examination. Learned counsel contended that, on occasions there can be justification for recalling a witness about an aspect on which statement of the witness was not recorded for one or the other reasons, and that for allowing such an application also there should be sound justification and the powers have to be exercised very carefully and sparingly. In this regard, learned counsel cited Moulvi Hazoor Bux v. State PLD 1983 F SC 209, wherein application under section 540, Cr.P.C. Moved by the accused for summoning the witness (victim--of sodomy) for confronting him with an affidavit said to have been sworn by him, refuting prosecution allegations, was refused by the trial Court and it was upheld during appeal.

5. Learned Assistant Advocate-General frankly conceded that the order is not defensible and stated that he does not want to contest the revision petition on behalf of the State.

6. For ready reference, selction 540, Cr.P.C. Is reproduced below :- "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 re-call and re-examine any person already examined; and the Court shall summon and examine or re-call and re-examine and such person if his evidence appears to it essential to the just decision of the case."

It is apparent that the whole stress about the power vested under section 540, Cr.P.C. For examining any person as a Court witness whether already examined or not, is that his evidence should appear to be essential for the just decision of the case. It can be easily deduced from the provisions of section 540, Cr.P.C. That exercise of power is a matter of discretion. There is no cavil with the problem that the discretion has to be exercised judicially and on....Sound basis, keeping in view, all aspects of the case. The discretion has not to be exercised to favour one or the other party.

The power can be exercised to know about something which has not already come on record, due to the failure of either party, or due to the reasons beyond the control of any of the parties, or on account of something which has come to light during trial.

7. The power in so far as it relates particularly to a witness already examined,--should be exercised only if some portion of the evidence expected to be deposed by the witness or supposed to be deposed by the witness, has not been deposed to either due to the failure of the party examining him or for any other reasons. In that also it has to be seen as to how materially the bringing on record of such evidence will help for coming to a just decision. The power cannot be exercised as a matter of rule and this fact is apparent from the authority cited by the learned counsel for the petitioner, wherein order of trial Court disallowing application for re-summoning a witness for confrontation of the affidavit said to have been sworn by the witness was upheld and maintained during the hearing of appeal.

' The power cannot be exercised for allowing volta faces. If this is allowed to be done, it will amount to opening floodgates where witnesses after making full statements might start coming up with one or the other excuse for their re-examination on the same aspect to depose differently. Such a situation will naturally result in diminishing the sanctity of trials and laying foundations for creating anomalies by allowing the witnesses to take different stands on the same matters by appearing first as a witness of a party and then appearing as a Court witness.

8. In the case in hand, the witness on whose application the impugned order under section 540, Cr.P.C. Was passed had appeared before the trial Court and had made a statement on solemn affirmation. He was declared hostile and was cross-examined by the State counsel but he maintained the position he had taken earlier. His stance in the application that he had made that statement under duress was something which any witness can come forthwith, before the trial Court after having deposed once in favour of one party, sometime to favors the other party and sometimes to save himself of the consequences, for which there might be possibility of proceeding against him.

9. As a result of the above discussion, the revision petition is accepted. The order of the learned trial Court summoning the witness under section 540, Cr.P.C. Is set aside.