MUKHTAR ALI and 3 others vs THE STATE

ORDER

' By this Criminal Revision, the applicants/accused have challenged the impugned order passed on application under section 540, Cr.P.C., by the learned IIIrd Additional Sessions Judge, Karachi (Central).

2. The facts as set forth in the memo. Of application are that applicants are facing trial in Sessions Case No,24 of 1998, under sections 364-A, 302 and 109, P.P.C., before the learned IIIrd Additional Sessions Judge, Karachi, (Central), which arose out of F.I.R. No,304 of 1997 of Police Station New Karachi, Karachi (Central), which was lodged by complainant Ayaz Ali Qureshi with regard to murder of Zoheeb alias Sobi, a minor boy aged about five years.

3. The learned Trial Court after framing the charge examined prosecution witnesses Ayaz Ali, Tanveer, Habiba Nawaz and Iqbal. The prosecution witnesses were cross-examined by the previously engaged counsel.

4. Subsequently, the applicants/accused engaged Mrs. Parveen Pervaiz, Advocate, who moved application under section 540, Cr.P.C., before the Trial Court for recalling the prosecution witness No,1 Tanveer Ahmed, who is the sole eye-witness in the case, for the purpose of further cross- examination.

5. The Trial Court dismissed the application under section 540, Cr.P.C., by impugned order, dated 6- 2-1999.

6. I have heard Mrs. Parveen Pervaiz, learned counsel for the applicants/ accused and Mr. Arshad Lodhi, learned A.A.-G. On behalf of the State. The latter has conceded to the request of the applicants/accused.

7. The perusal of the impugned order shows that prosecution witness Tanveer Ahmed was already cross-examined by Mr. Tarlq Mehmood, learned Advocate for the applicants/accused before the Trial Court.

8. There is no cavil that section 540, Cr.P.C., is divided in two parts.

The first part is discretionary while second part is mandatory. The powers under second part could only be exercised when the Court is satisfied that further cross-examination will be essential for the just decision of the case.

9. The section 540, Cr.P.C., imposes responsibility upon the Court that these powers must be exercised with care and caution. The Court cannot use these powers to advance the cause of the prosecution or defence but these powers are only meant to advance the cause of justice. The powers under section 540, Cr.P.C., are not meant to fill in the gaps or lacunas left by the parties to the proceedings.

10. In the case of Dilbar v. The State PLD 1986 Kar. 385, it was observed that opportunity of cross- examination cannot be repeated without very valid reasons and not on the ground that now a new counsel has been engaged and he has thought up a new line of defence according to which he wants to cross-examine the prosecution witnesses once again. With these observations the revision application for recalling the prosecution witnesses for further cross-examination was dismissed.

11. In yet another case of Saleem Ahmed Naseer v. The State and others 1985 PCr.LJ 1078 it was held that the power under section 540, Cr.P.C., cannot be exercised for allowing volta faces. If this is allowed to be done, it will amount to opening flood gates where witnesses after making full statements might start coming up with one or the other excuse for their reexamination 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. The order passed by the Trial Court summoning witness under section 540, Cr.P.C., was, therefore, set aside.

12. The witnesses in the case in hand were cross-examined by the counsel previously engaged by the applicants/accused and merely because another counsel is engaged by the applicants/accused, therefore, the prosecution witness may be recalled for the purpose of further cross-examination is no ground for recalling the witness in each and every case. It is well-settled that each case is to be decided on its peculiar facts and circumstances.

13. The citation in the case of Pervaiz Ahmed v. Munir Ahmed 1998 SCM R 326, relied upon by the learned counsel for the applicants/accused is distinguishable from the facts and circumstances of the present case.

14. The upshot of the above discussion is that the present revision application for recalling the prosecution witnesses for further cross-examination merits no consideration. Consequently, it is dismissed.