' MALIK MANZOOR HUSSAIN, J.---Instant criminal revision under section 435, Cr.P.C. Is preferred against the order dated 29-11-2013, passed by learned Additional Sessions Judge/Izafi Zilla Qazi, Chitral, whereby the application under section 540, Cr.P.C., filed by petitioners, for summoning of witness was dismissed.
2. The facts as set forth in the memo. Of application are that applicants were charged under section 337-A(i), P.P.C. And after conclusion of trial, they were convicted and sentenced by learned trial Court. Being aggrieved, the petitioners preferred appeal before learned Sessions Judge, Chitral and the same was allowed through judgment dated 19-8-2010, and the case was remanded back to the learned trial Court for de novo trial. That after remand, the learned trial Court vide judgment dated 24-12-2012, again sentenced the petitioner under section 337-L(1)/34, P.P.C. For one year and Daman up to the tune of Rs.25,000 each. Being aggrieved the petitioners preferred appeal before learned Appellate Court. It was during pendency of appeal that petitioners moved application on 3-9-2013, for re-summoning of P.W.5 Dr. Nazir Ahmad, which was turned down by learned appellate Court.
3. Learned counsel for petitioners contended that being member of Medical Board, P.W.5 Dr. Nazir Ahmad was necessary to be reexamined with regard to the report and stressed that powers under section 540, Cr.P.C., can be exercised by learned appellate Court to advance the cause of justice.
' Arguments heard, record perused.
4. Perusal of record reveals that P.W.5 Dr. Nazir Ahmad was examined during trial and his statement was recorded way back on 28-9-2009. No request was made during course of trial for re- examination of the witness, nor any request was made in the earlier round of litigation when the petitioner preferred appeal. Thereafter in the second round of trial, the petitioners never felt any necessity to re-summon this witness and it was during second round that the petitioners at the time of final hearing of appeal preferred application on 3-9-2013 in this regard.
5. It is evident from record that Dr. Nazir Ahmad was heading the Board as Chairman. The task was assigned to members Dr. Rukanud-Din, Dr. Anwar-ud-Din and Dr. Mehboob Hussain. The expert opinion had been elicited by the expert members. No application was made to re-summon these members whose statements have been recorded during trial. Even Dr. Nazir Ahmad was duly cross-examined by learned counsel for petitioners, before trial Court.
6. There is no cavil to the preposition that section 540, Cr.P.C., empowers the Court to recall any witness for just decision of the case, however, the same section of law imposes responsibility upon the Court that this power should be exercised with care and caution. The power under section 540, Cr.P.C. Is not meant to fill in the gaps or lacunas left by the parties to proceedings. This power could only be exercised when the court is satisfied that further cross-examination will be essential for the just decision of the case.
7. The appellate Court had such power, only when some material evidence was discovered subsequently which could not be collected earlier or where a party was prevented from adducing such evidence at the trial, for extraordinary reason beyond its control and power. In the present case the petitioners had ample opportunity at earlier round of appeal and de novo trial stage to have applied for re-summoning of the witnesses. As no material evidence in the shape of subsequent discovery was provided to the learned Appellate Court, which can consider the same to be sufficient for re-summoning of witness, the request was rightly turned down as there was no need to re-summon this witness and that too at a very belated stage.
' In view of what has been discussed above, this petition is devoid of any force and is dismissed.
Since the appeal is pending before learned appellate Court from 24-12-2012, therefore, the learned appellate Court is directed to finalize the same as soon as possible.