' SYED MUHAMMAD FAROOQ SHAH, J.---Through this criminal revision application, the applicant Ghulam Hyder Mangi, facing trial in S.C. No,55 of 2012 has made a prayer to set aside the impugned order dated 25-9-2013, whereby the learned Sessions Judge, Badin has dismissed the application filed under section 540, Cr.P.C., to recall three prosecution witnesses for further cross-examination, on the ground that some material questions had left by the previous defence counsel/during cross-examination.
2. Perusal of the record transpires that depositions of complainant Muhammad Yaqoob, P.W Sikandar and P.W Attaullah were recorded on 27-2-2013 and 12-3-2013 respectively. It appears that the previous defence counsel who conducted detailed cross, was superseded and the new counsel engaged by the applicant and co-accused has filed application under section 540, Cr.P.C. Before the Trial Court, which was culminated in dismissal order, as mentioned supra. Contents of the application under section 540, Cr.P.C., available at page 15 of the file reveals that new counsel did not specifically mentioned that on what material points and issues he wanted to further cross examine the witnesses.
3. Mr. Ghulam Sarwar Chandio, learned counsel for the appellant submits that the applicant namely Ghulam Hyder Mangi being father of two remaining accused shall be seriously prejudiced if proper opportunity of further cross-examination may not be afforded to them. Learned counsel further submits that it is settled law that proper opportunity of cross- examination be provided to the accused persons, particularly, re-examination of the witnesses is essential for reaching at just and fair conclusion of the case as held in PLJ 2004 SC 642 (relevant page 645). Learned counsel also placed his reliance on (2001 PCr.LJ 370).
4. Conversely, learned counsel for the complainant vehemently opposes the application and states that the applicant along with His two sons (accused) have availed the opportunity of cross- examination, as their counsel put the witnesses in lengthy cross. Learned counsel submits that there is no illegality or irregularity or infirmity appears in the impugned order which is supported with relevant law.
5. Learned DPG has also adopted the arguments advanced by the learned counsel for complainant and submitted that no one may be allowed to fill up the lacuna which was allegedly left during cross-examination.
6. I have considered the arguments advanced from both the sides and perused the material available on record.
7. Undoubtedly, section 540, Cr.P.C. Empowers the trial Court to call or recall the witness at any stage of trial, if his testimony is considered relevant and necessary to reach at the just conclusion.
The facts and circumstances of the cited ruling of honourable Supreme Court reported in PLJ 2004 SC 642 reveals that the evidence of material witnesses Patwari (CW-1) and Gardawar (CW-2), being relevant to decide the controversy, the application under section 540, Cr.P.C. Was allowed, with majority view. In another cited ruling reported as Muhammad Mumtaz v. The State (2001 PCr.LJ 370 Lahore), the sole eye-witness of the occurrence was directed to recall and reexamine as his evidence was essential in the just decision of the case.
8. Perusal of the impugned order reveals that the learned Sessions Judge, Badin while discussing all the pros and cons reached at the conclusion that all the witnesses were cross-examined at length by the previous advocate for the accused and no sufficient ground has been shown for re- cross-examination of the witnesses and the application has only been made to fill up the lacunas and cause delay in trial of the case. To support his contention, learned trial Court placed reliance on three citations. In reported case 1992 PCr.LJ 1230, the witnesses were cross-examined by the accused himself of his own free will without the assistance of counsel, and application for re-cross- examination was declined in the circumstances. However, in the present case, the witnesses were cross-examined by the Defence Counsel at length. In another citation reported as 2000 PCr.LJ 372; in similar circumstances, request to recall the witnesses those have already been cross-examined by the counsel, previously engaged by the accused was not allowed. Case-law relied on by the learned counsel for the applicant is not attracting in the peculiar facts and circumstances of the instant case.
9. The power to re-call the witness under section 540, Cr.P.C. Cannot be exercised as a matter of routine unless grave illegality or irregularity is shown to have been taken place. Facts and circumstances of the present case reveals that by granting permission to re-cross examine the witnesses amounts to put the witnesses in lengthy trial-those have already suffered a lot due to murder of wife of the complainant. The instant application apparently filed to fill up lacuna and to delay the trial, is accordingly dismissed having no merits for consideration.