' AQEEL AHMED ABBASI, J.---Being aggrieved by and dissatisfied with the orders dated 6-1-2011 and 21-1-2011 passed by the VIlth Additional Sessions Judge, Larkana on applications filed under Section 540, Cr.P.C. By the applicants/accused in Sessions Case No,607 of 2000 arising from Crime No,87 of 2000, registered at Police Station Bakrani whereby the request of the applicants/accused to summon and recall the prosecution witness namely Muhammad Bux Zuhrani was declined by the learned VIlth Additional Sessions Judge, Larkana, the applicants have filed the instant revision application under sections 435 & 439 read with section 561-A, Cr.P.C.
2. It is inter alia contended by the learned counsel that the applicants/accused are facing trial in the above mentioned crime on the charges of commission of murder of Kamal Ahmed Zuhrani and for causing injuries to P.W Muhammad Bux Zuhrani and others on the fateful day of the alleged incident. Learned counsel has submitted that during trial, prosecution examined 8 witnesses including P.W. Muhammad Bux Zuhrani who during his examination-in-chief stated that his statement under section 161, Cr.P.C. Was recorded by police. Per learned counsel due to over sight such prosecution witness could not be cross-examined on such assertion, as according to learned counsel, the statement of such witness was not recorded under section 161, Cr.P.C. By the police. It is submitted that during the evidence of the concerned Investigating Officer it transpired that the statement under section 161, Cr. P.C. Of prosecution witness Muhammad Bux Zuhrani was not recorded by the I.O. Learned counsel submitted that non-recording of the, statement under section 161, Cr.P.C. Of prosecution witness Muhammad Bux Zuhrani is a material flaw in the prosecution case which goes to the very root of the instant case therefore, it was necessary under the circumstances, to summon and recall the prosecution witness and to cross-examine him to the extent of his false assertion regarding recording of statement under section 161, Cr.P.C. Before the police. Per learned counsel, it is settled principle of evidence that if an assertion made by a witness in his examination-in-chief is not disputed or controverted in cross-examination such assertion would be deemed to have been accepted by opponent party. Per learned counsel, under this background of the matter, application under section 540, Cr.P.C. Was filed by the applicants/accused for summoning and recalling prosecution witness namely Muhammad Bux Zuhrani, which has been dismissed by the learned trial Court on the pretext that since the prosecution witness in his examination-in-chief has already made his assertion regarding recording of his statement under section 161, Cr.P.C. Before the police therefore, no useful purpose will be served by summoning and recalling such witness. Learned counsel for the applicants/accused further contended that under section 540, Cr.P.C, vast powers are available to the learned trial Court to summon and recall witnesses in the interest of justice. In support of his contention, learned counsel has placed reliance on the case of Khalil Rahman Ayub and others v.
Mrs.Syeda Yasmin Zaidi (2008 PLD Karachi 388) and Abdul Raoof v. The State (PLD 2001 Lahore 463).
3. Conversely, learned State Counsel and the counsel for the respondent No,2 opposed the instant revision application and submitted that since proper opportunity was granted to the counsel for the accused to cross-examine the prosecution witness, whereas almost all the prosecution witnesses have been examined therefore, summoning of the prosecution witness namely Muhammad Bux Zuhrani at this sage is not justified and will cause further delay in the conclusion of the trial. It is furiher argued that no useful purpose is likely to serve by recalling such witness as the I.O. Of the case has responded the query of the applicants/accused regarding non-recording of the statement of the prosecution witness namely Muhammad Bux Zuhrani under section 161, Cr.P.C.
By the police.
4. I have heard all the learned counsel, perused the record and the impugned orders passed by the learned Vllth Additional Sessions Judge, Larkana.
5. It appears that controversy revolves around determination of scope of section 540, Cr.P.C. And its application to the facts of the instant case. From bare reading of section 540, Cr.P.C, it appears that a court has the authority to summon and recall a witness during trial. It would be advantageous to reproduce provisions of section 540, Cr.P.C. Herein under:--
540. Power to summon material witness or examine persons present.---Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a 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.
6. From perusal of provisions of section 540, Cr.P.C, it emerges that any court can summon any person as a witness or examine him or recall and re-examine any person already examined at any stage or inquiry trial or other proceedings under the Criminal Procedure Code provided such summoning and recalling of the witness is essential for the proper and just decision of the case. In the case, it appears that when the evidence of prosecution witness namely Muhammad Bux Zuhrani was recorded on 26-6-2010, he stated that "my statement was recorded by police on 26- 11-2000 it further appears that when the evidence of I.O. Gulzar Hussain of the case was recorded on 24-12-2010, he has stated that "the statement of injured P. W Muhammad Bux was not recorded by him. It is correct to suggest that statement of injured witness Muhammad Bux is not available with the police file."
7. In view of such specific statement by the I.O. Of the case, the counsel for the applicants/accused, realising the effect of non-recording of statement of prosecution witnesses under section 161, Cr.P.C. By the police during investigation, requested for the recalling of the prosecution witness namely Muhammad Bux Zuhrani to put a specific question about non-recording of the statement under section 161, Cr.P.C. Before police, from the concerned prosecution witness i.e, Muhammad Bux Zuhrani. From the perusal of provisions of section 540, Cr.P.C. It has emerged that the learned trial court has power to summon and recall any witness at any stage of the proceedings if the same is necessary for the proper and just conclusion and decision of the case. Learned trial Court has turned down request for summoning and recalling the prosecution witnesses on the pretext that since prosecution witness Muhammad Bux Zuhrani in his examination-in-chief has already stated that his statement was recorded by police therefore, no useful purpose will by served by recalling such witness. Whereas the counsel for the applicants/accused wants to cross-examine this witness on this particular point by suggesting that no such statement of prosecution witness Muhammad Bux Zuhrani under section 161, Cr.P.C. Was recorded by police.
8. In view of herein above facts, 'I am of the view that the request of the applicants/accused for summoning and recalling the material witness namely Muhammad Bux Zuhrani to the extent of posing a specific question regarding non-recording of his statement under section 161, Cr.P.C.
Before the police, was justified and would not have been turned down. Moreover the same would not adversely affect the case of the respondent whereas the truth would come forward which would help disposal of the case in accordance with the law. Reliance placed by the learned counsel for the applicants/accused on the, above referred cases appears to be relevant.
Accordingly, the instant revision application is allowed. Learned trial court is directed to re- summon prosecution witness namely Muhammad Bux Zuhrani for the purpose of his cross- examination to the extent mentioned hereinabove. However, if such witness is not cross-examined by the counsel for the applicants/accused on the next date of hearing fixed by the trial Court, no more opportunity will be given in this regard and matter may be concluded as per law.
' The instant revision application is allowed in the above terms.