MUHAMMAD ISMAIL vs THE STATE

1. ' The applicant through his learned counsel has filed this Criminal Revision Application impugning the order dated 8-4-2000 passed by the learned IInd Additional Sessions Judge, Karachi, (South) whereby he dismissed the application moved under section 540, Cr.P.C. By the learned counsel for the applicant praying for recalling of main witness P.W. Mst. Rubina for her cross-examination in Sessions Case No,545 of 1998. (F.I.R. No,31 of 1998 of Police Station Kalari registered under section 10(3) of Zina (Enforcement of Hudood) Ordinance, 1979.

2. Briefly facts are that examination-in-chief of P.W. Rubina (who was victim of the incident) was recorded on 25-3-1999 when the Advocate for the accused was repeatedly called absent and the applicant was asked and given an opportunity to cross-examine her but he refused. Learned counsel for the accused immediately filed application under section 540, Cr.P.C., which was ordered to be fixed for hearing. Thereafter, learned trial Court, despite the pendency of the above application, examined five more witnesses and closed the side of the prosecution on the statement of DDA and fixed the case for the statement of the accused on 18-4-2000 and dismissed the above application after hearing the learned counsel vide order, dated 8-4-2000 which has been impugned in this revision application.

3. ' I have heard the learned counsel for the applicant as well as learned counsel appearing on behalf of the State.

4. It has been contended by the learned counsel for the applicant that his absence on 25-3-1999 was neither intentional nor deliberate but due to pre-occupation before other Court he could not reach the trial Court. It has, also, been contended that it is an obligatory upon the Courts to recall' and re- examine any person whose evidence appears essential to the just decision of the case and since P.W.5, Mst. Rubina, is a key witness and has made several contradictory statements, her cross- examination and confrontation with her previous statements is just and essential for arriving at a fair and equitable decision of the case. It has, further, been contended that the learned trial Judge has not examined the application, filed under section 540, Cr.P,C., in a legal and judicial manner and has not touched the legality and propriety of the said application but has dismissed the same on the sole ground that such application was not pressed at the appropriate stage. It has been contended that this observation of the learned trial Court is incorrect as the learned counsel for the applicant repeatedly approached the trial Court time and again to get the order passed on the said application but could not succeed since the learned trial Judge had been pleased to defer it.

5. Learned counsel has relied upon the cases of Altaf Hussain Shamim v. The State (PLD 1992 Kara 91) and Mst. Amna Bibi v. Kashif-ur-Rehman and another (1995 PCr.LJ 730) in support of his contentions.

6. ' Learned counsel appearing on behalf of the State concedes to the above legal position and has raised no objection if this criminal revision is allowed.

7. ' I have given my anxious consideration to the arguments advanced by the learned counsel for the applicant and the learned counsel for the State and have also gone through the record.

8. Section 540, Cr.P.C., clearly states that any Court may, at any stage of any inquiry, trial or other proceedings under this Code recall and re-examine any person already examined if evidence of such person appears to it essential to the decision of the case. In the present case, application under section 540, Cr.P.C., was filed to recall the main witness who could not be cross-examined on account of pre-occupation of the learned counsel. It is also matter of record that the learned counsel for the applicant immediately filed such application inasmuch as the witness was examined on 25-3-1999 whereas the application under section 540, Cr.P.C. Was filed on 13-4-1999 when the learned trial Judge ordered the said application to be heard on the date of hearing.

9. However, without disposing of the said application first, the learned trial Judge examined more five witnesses, closed the side of the prosecution and fixed the matter for statement of accused on 18- 4-2000. In this background, obviously the learned counsel for the applicant could have approached the trial Court for disposal of the application on which the learned trial Judge passed the order of 24-3-2000 issuing notice to DDA/PP for 25-3-2000 which was dismissed as above.

10. ' It is an obligation upon the Courts to recall and re-examine any person whose evidence appears essential to the just decision of the case and since P.W.5, Mst. Rubina, is a key witness and, according to the learned counsel, had made several contradictory statements, her cross- examination and confrontation with her previous statements is just and essential for arriving at a fair and equitable decision of the case. Learned trial Judge has not examined the application, filed under section 540, Cr.P.C., in a legal and judicial manner and has not touched the legality and propriety of the said application but has dismissed the same on the sole ground that such application was not pressed at the appropriate stage. The observation of the learned trial Court with regard to not pressing the application does not find any place because even if it is believed that the learned counsel was not approaching for getting the said application disposed of. It was the bouden duty of The learned trial Judge to dispose of the said application even without giving notice to the prosecution. The record shows that even notice on such application was ordered after the close of the side of the prosecution though the application was moved on 13-4-1999 even before examination-in-chief of P.W.6 but the learned trial Court only wrote a note on the first page of the application that 'Advocate to be heard on the date of hearing'. The record does not show that any progress in respect of the said application was made on the next date of hearing whereas on the next date of hearing at least notice could have been ordered to be issued. Indeed, the Court has no business to conduct the trial in a manner which reflects upon its impartiality but simultaneously a Judge cannot remain indifferent altogether or to act as a helpless creature so as to watch injustice on account of lapses of either of the parties, It is the duty of the Court to do justice to the parties within the ambit of law and if the law bestows an authority or a discretion to the Court the same must be exercised in judicial manner and for advancement of justice and not against it.

11. ' In the above circumstances, I allow this criminal revision application, set aside the impugned order, dated 8-4-2000 passed by the learned Judge and direct the learned trial Court to recall and reexamine/cross-examine the prosecution witness No,5, Mst. Rubina.

12. ' With the above observations, Criminal Revision Application No,48 of 2000 stands disposed of alongwith the listed application.