Through this revision petition under Section 435/439 Cr.P.0 order dated 24.5.2003 passed by the learned Special Judge Anti-Corruption, Multan camp at Khanewal' has been challenged by which the order passed on 21.4.2003 for recalling of PWs-1 and 2 for cross-examination under Section 540 Cr.P.0 due to non fulfilment of condition for deposit of Rs, 1,000/- has been recalled.
2. The brief facts of this case are that the petitioner is facing criminal trial in case FIR No, 27/2000 dated 13.12.2000 registered under Section 461 PPC read with Section 5(2) of Prevention of Corruption Act, 1947, at Police Station City Khanewal. The petitioner moved an application under Section 540 Cr.P.0 for recalling PWs.1 and 2, which was allowed vide order dated 21.4.2003 subject to deposit of Rs, 1,000/- within one week but the petitioner could not deposit the said amount within the stipulated period and on 24.5.2003 the said order was recalled by the learned Special Judge Anti Corruption, Hence, this revision petition.
3. Learned counsel for the petitioner contends that when order was passed by the learned trial Court in the interest of justice to afford an opportunity to the petitioner to cross-examine the witnesses (PW-1 and PW-2), it could not be recalled merely due to the reason that the petitioner failed to arrange for payment of Rs, 1000/- in the Court within one week. It is further contended that the petitioner being accused in a criminal case has a right to cross-examine the PWs when he has already shown sufficient cause for re-summoning of both the witnesses for the purpose of cross- examination and he cannot be deprived of the said right merely for default in payment of fine of Rs, 1000/-.
4. The learned State counsel on the other hand opposed this petition. None has appeared on behalf of Respondent No 2 despite telegraphic notice, hence he is proceeded ex-parte.
5. I have heard the learned counsel for the parties and also perused the impugned orders. The petitioner moved an application under Section 540 Cr.P.0 that due to non-availability of the copies of the report under Section 173 Cr.P.C, the statements of the complainant under Section 154 Cr.P.0 and other witnesses u/S. 161 Cr.P.0 he could not cross-examine PW-1. Similarly he could not cross- examine PW-2 as the learned counsel for the petitioner was not available in the Court on the said date. The learned Special Judge Anti Corruption vide his order dated 21.4.2003 had accepted the application for summoning PWs. 1 and 2 for the purpose of cross-examination by the petitioner/accused subject to deposit Rs, 1,000/- within one week. The petitioner could not deposit the said amount within the stipulated period and this order has been recalled 'on 24.5.2003.
Learned counsel has also pointed out that application was also moved by the petitioner on 19.5.2003 alleging therein that he was the only bread winner of the family being Govt; Servant in BPS-7 and his children were studying in different Institutions, hence the condition for deposit of Rs, 1,000/- may be recalled, but even then the learned Special Judge has recalled the earlier order. I am of the view that once the Court had come to a definite conclusion that the petitioner was not afforded sufficient opportunity to cross-examine the witnesses and ordered for summoning both the witnesses (PW.1 and PW.2), this order could not be recalled merely on the ground that the petitioner had failed to deposit the amount of fine within the specified period. An opportunity for cross-examination should have to be afforded to the petitioner inspite of the fact he failed to deposit the said amount as the cross-examination on a witness is the right of an accused and sufficient opportunity, has to be granted to him in this regard. Hence the order dated 24.5.2003 is set aside. The learned counsel for the petitioner on instructions undertakes that on the next date of hearing i,e, 21.2.2004 fine of Rs, 1,000/- imposed vide order dated 21.4.2003 will be deposited in the learned trial Court. The learned trial ,Court shall recall both the PWs. 1 and 2 and one opportunity shall be afforded to the petitioner to cross-examine the witnesses. However, if the witnesses are present and the petitioner or his counsel fail to cross-examine them, no further opportunity shall be afforded to them in this regard as the case is heady at the final stage.
This revision petition stands accepted in the above terms.