1. ' SYED ZAWWAR HUSSAIN JAFFERY, J.---The applicants being aggrieved with the impugned order, dated 27-1-2007, passed by learned 1st Additional Sessions Judge, Dadu has dismissed the application under section 540, Cr.P.C., filed by the applicants for recalling and re-examination of P.W.7 A.S.-I. Muhammad Ismail Landhar, P.W.8, Dr. Muhammad Umer, P.W.9 Dr. Hidayat Ali and P.W.11 Inspector Arbab Ali Khoso.
2. ' The brief facts as narrated in the F.I.R., are that on 25-4-2002, Shahid Hussain Narejo lodged N.C.
3. No.9, at Police Post Shah Panjo Sultan against the above named applicants and thereafter same was incorporated under section 154, Cr.P.C. By Muhammad Ismail Incharge Police Post Panjo Sultan regarding killing of deceased Iqbal Hussain and Mullan Manzoor Hussain. It is further stated in the F.I.R. That about 5-30 p.m. Accused persons namely Musadiq Hussain armed with repeater, Ghulam Farooq with DBBL gun, Abdul Waheed with SBL gun, Abdul Salam with lathi and Abdul Sattar was empty handed reached at the place of incident and Abdul Sattar instigated other accused to kill the complainant party, whereupon accused Musadiq made straight fire from his repeater upon Iqbal Hussain who sustained injuries and fell down. Co-accused Abdul Waheed and Farooque also made fires from their guns upon the complainant party with intention to kill them whereby Mullan Manzoor Hussain sustained injuries who also fell down but the complainant did not receive any injury. Upon fire shots and cries, Niaz Hussain, Atta Hussain, Kamran, Manzoor Hussain, Altaf Hussain and Asif Hussain reached at the place of incident whereupon accused Abdul Sattar caused injuries to Mullan Manzoor Hussain on his head and thereafter all the accused persons caused lathi and butt blows. In the meanwhile village persons came from the village by raising hakals. The assailants fled away with their weapons. The Investigating Agency after recording evidence of prosecution witnesses submitted the charge sheet in the Court having jurisdiction. The trial Court after hearing the learned counsel for respective parties dismissed the application vide order, dated 27-1-2007, hence this revision.
4. ' Mr. Zubair Ahmed Rajput, learned counsel for applicants has contended that an application for recalling of four witnesses was submitted in the trial Court due to discrepancy and non-production of the material documentary evidence and proper cross was not put to the said witnesses. The learned counsel for applicants has pointed out that certain contradictions which have not been brought/put at the time of cross-examinations and important questions relating to the post mortem of the deceased was not confronted to the witnesses, therefore necessity has arisen to further cross-examine said witnesses which is essential for arriving at just and correct conclusion of the case and to find out the truth regarding the allegations alleged against the applicants. It is further urged that with regard to entry No.9, F.I.R., preparation of mashirnama of injuries, danistnama and other documents were not confronted to the witnesses and some important questions relating to the medico legal science were also not confronted by the witnesses as well as suggestion with regard to the conducting investigation, arrest of the accused; recovery of crime weapons, recovery of empties, recovery of lathi, ballistic expert's report have not been confronted to the said witnesses, therefore the trial Court has failed to appreciate the grounds for recalling of the witnesses in respect of crime weapon viz., repeater, DBBL, gun shown recovered from Abdul Sattar, the said weapons were sent to the ballistic expert and report was also dispatched to the trial Court but the same report was not exhibited by the trial Court by the prosecutor as the same was not in favour of the prosecution, therefore, the impugned order may be set aside.
5. ' Mr. Muhammad Ismail Bhutto, learned State counsel has opposed the prayer made by the learned counsel for applicants. Mr. Bhutto submits that P.Ws.8, 9 and 11 were examined and relevant cross- examination was made by the learned counsel for applicants. The prosecution has closed its side and now case is fixed for recording of statements of the accused/applicants.
6. I have heard the arguments of the learned counsel for the respective parties. It is admitted fact that the trial Court had recorded the evidence of 12 witnesses and four witnesses, namely, P.W.-7 A.S.-I. Muhamad Ismail Landhar, P.W.8 Dr. Muhammad Umar, P.W.9 Dr. Hidayat Ali and P.W.11 Inspcctor Arbab Ali Khoso were cross examined. It is settled principle of law that the trial Court has power to examine any person as a witness and recalling and re-examine .Any witness at any stage of trial when it becomes essential for just decision of the case. The trial Court cannot deprive legal and valid defence of any party as he veracity of the witness is to be decided by way of cross- examination. P.W.7 Muhammad Ismail Landhar Incharge Police Post Shah Panjo Sultan is author of the F.I.R. And the said F.I.R. Has not been produced either mistakenly or deliberately, therefore reexamination of such witness by recalling witness is essential before passing the judgment. The evidence of the medical Officer recorded in the trial Court reflects that the pellets recovered were not sent to the ballistic expert but only repeater was sent for examination and certification that certificate has not been produced in evidence by the prosecutor as it was in favour of the applicants/accused. Then there is evidence of P.W. Inspector Arbab Ali Khoso, he is investigating officer and sent the repeater for ballistic expert's opinion. The report of ballistic expert was received but the same was not produced. Then there is evidence of production of mashirnama of house search and recovery of DBBL gun. The trial Court failed to consider above important controversy of the case and dismissed the application without any justification. There is precedent in case of State v. Muhammad Yaqub and others (2001 SCM R 308), that under section 540, Cr.P.C. Court has power to summon material witnesses. It has been held by the Hon'ble apex Court that the Court has to do complete justice between the parties and the carelessness or ignorance of any party or the delay that may result in the conclusion of the case should not be hindrance in achieving the object. Then there is another authority on the very subject matter as reported in case of Muhammad Azam v. Muhammad Iqbal (PLD 1984 SC 95). In this authority it has been held that the duty nevertheless lay squarely on the trial Court to summon entire available evidence on this controversy and record/admit the same by virtue of power under section 540, Cr.P.C., it reads as follows:-- "540. Power to summon material witnesses or examine person present.---Any Court may, at any stage of any inquiry, trial or other proceedings under this Code, summon any person as a witness, or examine any person in attendance, - though not summoned as witness, or recall and re- examine any person already examined and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it essential to the just decision of the case."
7. ' The main condition to be satisfied with regard to the second part is that the evidence to be summoned under this part should appear to the Court to be essential to the just decision of the case. It needs to be observed that for the purpose of acting under section 540, Cr.P.C., (whether the first or second part) it is permissible to look into the material not formally admitted in evidence, whether it is available in the records of the judicial file or in the police file or elsewhere. The perusal of both these records would show that if evidence in connection with the items already noticed, would have been properly entertained the reasoning and decision of the learned two Courts might have been different. There is no bar under the law that if a witness examined by the trial Court cannot be re-examined if there are reasonable grounds to recall such witness in the interest of justice. The contention raised by the learned State counsel that witnesses have already cross examined, therefore, they cannot be recalled for further cross-examination. In-fact Court is empowered to summon/recall any prosecution witness during trial proceedings. It does not mean that by recalling such witness the defence wants to fill gaps but in fact the material documents were available in the prosecution case were not brought on record for the dispensation of justice.
8. In view of the foregoing reasons I am of the view that the application filed by the applicants under section 540, Cr.P.C. Was not properly considered by the trial. Court for recalling four witnesses. The impugned order is set aside. The trial Court is directed to recall four witnesses namely P.W.7 A.S.-I.
9. Muhammad Ismail Landhar, P. W . 8, Dr. Muhammad Umer, P.W.9, Dr. Hidayat Ali and P.W.11.
10. Inspector Arbab Ali Khoso. The trial Court shall issue process for the said witnesses for their cross- examination and decide the case in accordance with law.