1. ' NISAR MUHAMMAD SHAIKH, J.---Through this Criminal Revision, the applicant/accused Deedar has assailed the order dated 25-2-2012, passed by learned IInd Additional Sessions Judge, Larkana whereby he dismissed the application of the applicant under section 540, Cr.P.C. For recalling the complainant and Prosecution Witnesses for their further cross-examination in a case under section 302/34, P.P.C.
2. ' I have heard learned counsel for the applicant and learned State Counsel as well as the complainant Abdullah in person and also perused the relevant record.
3. ' The learned counsel for the applicant, relying upon the cases of Abdul Raoof v. The State (PLD 2001 Lahore 463), Khalil Rahman Ayub and others v. Mrs. Syeda Yasmin Zaidi (PLD 2008 Karachi 388), Muhammad Murad Abro v. The State (2004 SCMR 966) and unreported order passed by this Court in Criminal Revision Application No,8 of 2011, contended that the applicant/accused Deedar was shown in the challan as absconder and subsequently he was arrested and was sent up to face trial in Crime No,91 of 2004 of Police Station Bakrani under section 302/34, P.P.C. But since he could not engage private counsel, therefore, he was provided a counsel on State expenses. He further submits that since the material questions were not put from the Prosecution Witnesses by the counsel appointed on State expenses therefore, the applicant is entitled to recall those witnesses to be cross-examined further by his private Advocate who was subsequently engaged by him. He further submits that no prejudice would be caused to any body if P.Ws. Are recalled for their further cross-examination as the same will be for the just and proper decision of the case.
4. ' On the other hand the complainant Abdullah as well as learned State counsel have opposed the above submissions contending that this Criminal Revision is liable to he dismissed.
5. ' It will be advantageous to reproduce the relevant part of the impugned order dated 25-2-2012, passed by the learned IInd Additional Sessions Judge, Larkana, which reads as under:-- "I have heard the arguments of parties and perused the material available on record. The perusal of recordshows that accused was provided advocate for pauper accused on State expenses namely Mr. Dildar Ali Chandio, who had conducted the proceedings before this Court and complainant along with P.Ws. Were cross-examined by him at length. Later on accused has engaged the present Advocate Mr. Ghulam Ali Samtio, who has moved this application for re- examination of the same witnesses who were already cross-examined at length. This is an old case and in this case it has remained the conduct of accused to prolong the trial by one way or the other way and that is on the record. The power to recall the witnesses under this section can not be exercised as matter of routine unless grave illegality or irregularity has been shown to have taken place but in present situation nothing appears so. The learned counsel has moved this application on the ground that witnesses were not cross-examined on many material points. I do not think so that this is valid reason, to provide again opportunity of cross-examination to defence, which certainly prejudice the case of complainant. The provision of this section cannot be applied to fill up the lacunas of either side. The engagement of another counsel is also not a valid ground for re- summoning the witnesses for cross-examination. Therefore, while placing my reliance on 2011 YLR 588, PLD 1986 Karachi 385, 2001 SCMR 424, 2009 YLR 486 and 2010 PCr.LJ 541, I do not find substance and merit in this application."
6. It is an admitted position that the complainant and some of the P.Ws. Were cross-examined by the Advocate who was appointed for pauper accused/applicant on State expenses. According to learned State Counsel, such cross-examination was conducted at length. The learned counsel for the applicant submits that he had filed his Vakalatnama for the applicant on 10-2-2012 and moved application under section 540, Cr.P.C. On 18-2-2012 which was dismissed on 25-2-2012. The learned counsel for the applicant however admits that he himself also conducted cross-examination of two P.Ws. Who were examined by the prosecution after he filed Vakalatnama for the applicant. It is also an admitted position that now the case is fixed before trial Court for recording statement of the accused under section 342, Cr.P.C. As the side of the prosecution was closed on 21-4-2012.
7. ' In view of the above position; there appears no cogent reason to recall the P.Ws. Who were already examined by the prosecution and cross-examined by the Advocate of the applicant appointed on State expenses, specially when the present learned counsel for the applicant also cross-examined the remaining P.Ws. Himself and thereafter side of the prosecution was closed. The case of Abdul Raoof v. The State (PLD 2001 Lahore 463) as relied upon by the learned counsel for the applicant, shows that the cross examination of the P.Ws. Could not be conducted on account of non availability of the advocate for the accused, Hence this reported case cannot be said to be relevant. In the case of Khalil Rehman Ayub and others v. Mrs. Syeda Yasmin Zaidi (PLD 2008 Karachi 388) the dispute between the parties was relating to the succession matter which was a civil matter in which the signature of the deceased was in question. The learned counsel for the applicant relied upon such reported case in which it was held that the assertions made by a witness if not disputed or controverted in cross-examination the same would be deemed to have been accepted by the party. But, in the instant case the learned counsel for the applicant has not yet shown the point on which he wanted to recall the P.Ws for the purpose of further examination saying that if he disclosed such material points then the case of the applicant will be prejudiced.
8. Similar was the position in the case of Muhammad Murad Abro v. The State (2004 SCMR 966) which was a criminal case of murder and there was a sole witness in respect of occurrence and identification of the accused at the spot and it was observed by the Hon'ble Supreme Court that fate of the case being defendant on the sole statement of such witness, it would be unfair of prosecution not to call him in witness box for reexamination and his re-examination would not be against the criminal administration of justice. Here, in the instant case the facts are not the same as the P.Ws. Already examined by the prosecution were duly cross-examined by the Advocate of the applicant, earlier appointed on State expenses, and no specific question or material point has been shown to have been left out to indicate necessity for recalling such witnesses.
9. ' In the unreported case of. Nizamuddin v. The State, the order dated 18-2-2011, passed by this Court in Criminal Revision Application No,8 of 2011, shows that the application under section 540, Cr.P.C.
10. Was allowed only to the extent of recalling a witness for putting a specific question in his cross- examination about recording of 161, Cr.P.C. Statement.
11. It appears that the above case-law as relied upon by the learned counsel for the applicant, is not relevant being distinguishable to the facts of the matter involved in this case and there appears no justification to call for interference of the impugned order which seems to be proper and reasonable and there is no illegality or even irregularity committed by the trial Court in this regard.
12. This Criminal Revision is therefore dismissed.