RASHID AHMAD vs IBRAHIM and another
This criminal revision petition challenges an order passed by the Sessions Judge allowing an application under Section 540 of the Code of Criminal Procedure 1898. The petitioner sought to recall a prosecution witness, who had already been subjected to lengthy cross-examination, for further questioning regarding discrepancies between his trial testimony and his statement under Section 161 of the Code of Criminal Procedure 1898. The core legal question was whether the court could exercise its discretionary power under Section 540 to recall a witness simply because counsel failed to confront the witness with a prior statement during the initial cross-examination. The Lahore High Court set aside the impugned order, holding that Section 540 cannot be invoked to fill lacunas in the prosecution's case or to allow a party to re-examine a witness merely because of an oversight in cross-examination. The Court established that allowing such a practice would undermine the finality of witness testimony and could be misused to favor one party, emphasizing that the power to recall witnesses must be exercised in accordance with established principles of criminal jurisprudence.
- Can Section 540 of the Code of Criminal Procedure 1898 be invoked to recall a witness to fill lacunas in the evidence?
- Is it permissible to recall a witness for further cross-examination solely because counsel failed to confront the witness with a prior statement during the initial cross-examination?
- Does the power under Section 540 of the Code of Criminal Procedure 1898 allow for the indefinite recall of witnesses?
- Section 302, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 540, Code of Criminal Procedure 1898
' Facts leading to filing of this revision are that the petitioner had got a case registered under section 302, P.P.C. Against the respondent on 28-1-1995. After due investigation challan was submitted and trial commenced. Eye-witness Khair Din was produced as P.W.6, who gave his address as Shamkot, whereas in his statement under section 161, Cr.P.C., according to the learned counsel for the petitioner, he had stated that he was resident of village Dhola. The witness was subjected to lengthy cross-examination consisting of three typed pages. His evidence was concluded on 25-6-1995. Thereafter on 8-8-1995 an application under section 540, Cr.P.C. Was moved praying for summoning of said Khair Din for purposes of records-examination on the ground that the witness could not be confronted with his earlier statement recorded under section 161, Cr.P.C. Learned Sessions Judge vide order, dated 12-9-1995 accepted the application. In the present revision said order has been assailed.
2. It was contended by learned counsel for the petitioner that section 540, Cr.P.C. Cannot be invoked for filling in the lacunas. Argued that if a witness is thoroughly subjected to cross- examination, thereafter he cannot be summoned simply on the ground that some questions could not be asked. Argued that if this principle was accepted. Then the statement of any witness can never be concluded. The contentions were opposed by learned counsel for the State.
3. I have heard the learned counsel and gone through the file. I am in agreement with the learned counsel for the petitioner because the witness appeared on oath and was subjected to lengthy cross-examination. Thereafter with an interval of 2 months present application was given for summoning the witness. It cannot be allowed. Nothing new was introduced in the statement which required clarification or cross-examination. If this practice is adopted then a witness can be summoned at any time to favor one party or the other. I, after going through the order impugned, am of the view that it is not in accordance with the established principles of Criminal Jurisprudence and the judgments of the superior Courts on the point. The order impugned is set aside.
Cited by 3 cases
- Syed TALIB ALI and another vs The STATE 2018 P Cr. L J 1508
- MUHAMMAD BASHIR alias SHANI vs ADDITIONAL SESSIONS JUDGE (II), PATTOKI, DISTRICT KASUR and 3 others 2008 PLD Lahore 516
- GUL MUHAMMAD and 4 others vs THE STATE 1999 P Cr. L J 771