' The captioned petition has been addressed against the order passed by the learned District and Sessions Judge, Hattian Bala on 08.04.2013 whereby the order passed by the Judicial Magistrate, Hattian Bala, on 22.12.201.2 was maintained and the application of petitioner, herein, under Section 540 of Cr.P.C. Was dismissed.
2. Precise and relevant facts for the disposal of captioned petition are that a case titled State us.
Munir Ahmed, in offences under Sections 419/420, 467/468, 471, A.P.C. Is subjudice before Judicial Magistrate, Hattian Bala, wherein the next date of hearing was fixed as 28.04.2013. It is averred that a complaint was filed by the Civil Judge, (then) Ayaz Bashir, against the petitioner herein, upon which the police registered an FIR No. 55/2005 in offences under Sections 419/420, 467/468, 471, APC at Police Station Chinnari. The Police after completion of investigation submitted a report under Section 173 of Cr.P.C., (Challan), in the Court of competent jurisdiction to try the case on 10.10.2009. It is further averred that evidence of the prosecution has been recorded by the Judicial Magistrate. It is submitted that complainant, Ayaz Bashir, Civil Judge, Hattian Bala, was produced as prosecution witness and the accused/petitioner, herein, intended to re-examine the said witness in respect of some important questions and in this respect, accused/petitioner, herein, moved an application before the trial Court for re-summoning the said witness, on 20.09.2012. After obtaining the objections from the prosecution, the learned trial Magistrate dismissed the application of accused/petitioner, herein, vide order dated 22.12.2012. It is claimed that against the above mentioned order, accused/petitioner, herein, filed a revision petition in the Court of Sessions Judge, Hattian Bala, which was dismissed on 08.04.2013, hence, this petition.
3. Petitioner, Muhammad Munir, himself appeared before the Court and submitted written arguments whereby he reiterated the averments raised in the petition. It is stated therein that for the sake of safe administration of justice it was mandatory for the trial Court under the relevant provision of law, to accept the application filed on behalf of the accused/petitioner, herein, under Section 540, Cr.P.C. It is further averred therein that while accepting the captioned petition, the impugned orders passed by the Courts below be recalled and the trial Court be directed to recall the complainant, above mentioned witness for re-cross-examination.
4. I have scrutinized the written arguments submitted by the petitioner and perused the available record appended along-with the petition carefully
5. A perusal of record reveals that on complaint of prosecution Witness No. 1, Ayaz Bashir, the learned Civil Judge, Hattian Bala, FIR No. 55/2005 was registered against the accused-petitioner in offences under Sections 419/420, 467/468/471, APC at Police Station Chinnari and after investigation the concerned investigating agency submitted challan/report under Section 173 of Cr.P.C. On 10.10.2009 before the trial Court, Judicial Magistrate, Hattian Bala. It reveals that prosecution has produced Witnesses Nos. 1, 3 to 7 before the trial Court which were cross- examined by the accused-petitioner, herein, while the evidence of remaining prosecution witnesses was closed and the case was posted for recording the statement of the accused- petitioner, herein, under Section 342 of Cr.P.C. And next date was fixed as 28.06.2012. On 20.09.2012, accused-petitioner, herein, moved an application under Section 540 of Cr.P.C. Before the trial Court for summoning the prosecution Witness No. 1, Ayaz Bashir, the learned Civil Judge, (then). After obtaining objections and hearing the parties, the learned Civil Judge, rejected the application of accused-petitioner vide order dated 22.12.2012 against which a revision petition was also dismissed by the learned District and Sessions Judge, Hattian Bala vide order dated 08.04.2013.
6. Feeling aggrieved the accused-petitioner, herein, filed the captioned petition under Section 561- A, Cr.P.C. For quashing the impugned orders by accepting the application under Section 540, Cr.P.C.
With the direction to trial Court to re-summon the PW 1 for re-cross-examination.
7. I have deeply scrutinized the allegation raised in the application by the applicant/petitioner, herein, and evidence of PW-1 and other witnesses adduced by the prosecution against the accused-petitioner. The trial Court provided full opportunities to the accused-petitioner and his counsel to cross-examine the witnesses adduced by the prosecution in support of allegation, leveled against accused-petitioner. Ayaz Bashir, the learned Civil Judge, Hattian Bala (then) appeared in the witness box on 22.10.2011. The learned trial Court after recording the examination- in-chief of the said witness provided the opportunity to the accused-petitioner, herein, to cross- examine the said witness, whose counsel has cross-examined the said Witness No. 1 to some extent in the presence of accused-petitioner as much as they desired, as such, the said witness has been fully cross-examined to the extent of accusation of the accused. When the case was posted for recording statement of accused-petitioner, herein, under Section 342 of Cr.P.C, then he moved an application for calling the said witness for re-cross-examination which was rejected by the trial Court after recording its observation according to the provision of law and the revision Court has also observed that accused-petitioner was afforded full opportunity to cross-examine the said witness as provided under law, therefore, no illegality or infirmity has been committed by the trial Court, therefore, the revision application was discarded.
8. A perusal of Section of 540, Cr. P.0 clearly postulates that power given to the Court to summon any person as witness or examine any person in attendance or recall and re-examine any person already. Examined is discretionary. So for the first part of the Section is concerned for the reason that word "may" is used. So far, the second part of this Section concerned word "shall" is used and it has been made, to some extent, mandatory for the Court to summon and examine or recall and re-examine any such person, if his evidence appears to the Court to be essential for just decision of the case. It obviously manifest from plain reading of the whole Section that the mandatory part shall operate only when the Court is satisfied that the evidence proposed to be produced is essential for just decision of the case. It therefore, follows that satisfaction of the trial Court about the imperative and essential nature of the evidence proposed to be produced is necessary. At first instance the Court has to be satisfied that evidence proposed to be produced is very important for the just decision of the case. Thus, mandatory part of this Section will apply only when important piece of evidence has been left out inadvertently and that Court is fully satisfied that it must be examined because without it just decision of the case cannot be made.
9. It will not be out of place to mention here that in the case in hand, except PW 2 all prosecution witnesses were already examined and they were also cross-examined by the counsel engaged by the accused in his presence. PW No. 1 Ayaz Bashir the learned Civil Judge, Hattian Bala, (then) complainant appeared as PW on 22.10.2011, and preponderance of his deposed evidence obviously shows that he was examined in the presence of accused and cross-examined by the counsel of accused-petitioner, herein, to some length, without any hindrance or objection from the trial Court or prosecution and no further cross-question on behalf of accused was put to the said PW, thus, his evidence came to rest.
10. The last PW No. 7 was examined and cross-examined on 30.05.2012, the prosecution came to its end and the case was posted for the statement of accused under Section 342 of Cr.P.C. At that belated stage accused changed his mind and filed an application under Section 540 of Cr.P.C.
Instead of recording his statement under Section 342 of Cr.P.C. When the whole evidence of prosecution had already come on the record in normal course and according to law with proper opportunities allowed to the defence for cross-examination. Scrutiny of evidence of PW No. 1, reveals that apparently there was no other justification for making a request to recall the said PW who had already been cross-examined by the accused-petitioner, with full vehemence. Thus, if Section 540 of Cr.P.C. Was allowed to be invoked, in such a situation, then it would amount to setting up a dangerous precedents and there would be no end and this Section was not available on Statute book for such purpose and even the mandatory part of it gave power to the Court to summon and examine or re call or re-examine any such person if his evidence appeared to be essential for just decision of the case, which is lacking in the case in hand. Opportunity of cross- examination cannot be repeated without any solid reasons and not on the flimsy grounds as taken by the, accused-petitioner herein, in his application.
11. In the peculiar circumstances of the Case in hand, I am not inclined to allow this revision petition on the flimsy grounds enumerated in the application filed by the accused-petitioner, herein, to recall or re-cross examine the PW-1 in accordance with his own line of defence managed by him, against the relevant provisions of law. Accused-petitioner, referred to and relied upon, a case titled Riaz & others vs. The State [1991 PCr.LJ 8771 which is distinguishable and not applicable in the case in hand, as such, same need not to be discussed in detail herein.
12. In the light of the facts and reasons stated above while upholding the impugned orders passed by the Courts below, this revision petition is dismissed.