MUHAMMAD ZAHEERUDDIN (ANWAR) vs The STATE
This matter concerns a criminal petition for leave to appeal against the dismissal of a revision petition by the Lahore High Court, which had upheld a trial court's refusal to recall a prosecution witness for cross-examination. The core legal question was whether the trial court erred in exercising its discretion under Section 540 of the Code of Criminal Procedure 1898 by denying the accused an opportunity to cross-examine a witness who had testified in the absence of the accused's counsel. The Supreme Court held that the interest of justice necessitated the recall of the witness. Consequently, the Court converted the petition into an appeal, allowed the same, and remanded the case to the Special Judge, Anti-Corruption, with directions to afford the petitioner or his counsel a proper opportunity to cross-examine the witness before proceeding with the trial. The key principle established is that the trial court's discretionary power to summon or re-summon witnesses under Section 540, Code of Criminal Procedure 1898, must be exercised in a manner that ensures the accused is not deprived of the fundamental right to cross-examine witnesses, particularly when the witness is available and the request is made promptly.
- Does a trial court have the discretion to refuse the recall of a witness for cross-examination when the witness is available and the request is made promptly?
- Is it a valid exercise of judicial discretion to deny an accused the opportunity to cross-examine a prosecution witness who testified in the absence of the accused's counsel?
- Can the Supreme Court remand a case to the trial court to ensure the accused is afforded the opportunity to cross-examine a witness?
- Section 161, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
- Section 540, Code of Criminal Procedure 1898
ORDER
MIAN BURHANUDDIN KHAN, J.--The petitioner was tried by the learned Special Judge, Anti- Corruption, Lahore Camp at Sialkot under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947. Date for the prosecution evidence was fixed on 10-2-1985. Abdul Majid P.W. 1 was examined by the prosecution. The petitioner was directed by the learned Special Judge to call his counsel to cross-examine the witness. It is stated that petitioner returned to the Court, alongwith his counsel when the statement of Abdul Majid P.W. 1 had already been concluded and the second P.W. Noor Hussain was being examined petitioner's counsel requested that P.W. 1 Abdul Majid may be recalled, who was present in the Court to enable him to cross-examine the said, witness. The learned Special Judge turned down this request and directed that an application for the said purpose be made. On the same day the petitioner, through his counsel, made an application under section 540, Cr.P.C. For re-summoning the witness. The learned Special Judge, however, rejected the application vide order, dated 13-5-1985 mainly on the ground that the learned counsel for the petitioner could easily come to the Court well in time. The petitioner filed a criminal revision against the said order in the Lahore High Court which was dismissed in limine vide the impugned order.
2. Learned counsel for the petitioner contended that the statement of Abdul Majid P.W. 1 was recorded in the absence of the accused/ petitioner. He had not at all blamed the petitioner but had actually stated that the loss to the petitioner could not occur had the learned advocate been mindful of his duty; that the distinction between the first part of section 540, Cr.P.C. And second part thereof namely the discretionary domain and the obligatory domain of the powers of the learned trial Court has escaped notice of the learned Single Judge. In support of his contentions the learned counsel relied on Abdul RahMan and others v. The State PLD 1983 SC 73; Kamal Din v.
The State PLD 1983 SC 85 and Ghulam Daud v. The State 1984 SCMR 898.
3. In the impugned order the learned High Court Judge observed that after considering the submissions made by the learned counsel for the petitioner, he was not persuaded to agree with him as there was no affidavit of the learned counsel for the petitioner placed on the record to the effect that the petitioner had come to take him to the Court and that when they appeared before the learned Special Judge, Anti-Corruption, the evidence of Abdul Majid P.W. 1 had already been recorded in the absence of the accused. It was further observed by the learned Judge that it was within the discretion of the Court to re-summon or refuse to re-summon the witness for cross- examination, and, therefore, the order of the learned trial Court was neither perverse not illegal.
4. Learned counsel submitted that just on the conclusion of the statement of Abdul Majid P.W. 1 counsel for the accused had appeared and had made a request immediately for recalling the said witness for re-examination; that he also gave good reasons in the application. Mr. Aslam Bajwa, Advocate has filed an affidavit in this Court, in this regard.
5. In the interest of justice, we convert this petition into an appeal; allow the same and remand the case to the learned Special Judge, Anti-Corruption for affording an opportunity to the petitioner or his counsel to cross-examine the aforesaid witness and thereafter proceed with the trial of the case in accordance with law.
Cited by 2 cases
- Muhammad Hayat Versus State 2026 PCrLJ 949
- Muhammad Hayat vs The State through Additional Advocate General and another 2025 PHC 114