SHAHID HAMEED DAR, J.---The petitioner is aggrieved of order dated 28.1.2015, whereby an application moved by him under section 540, Cr.P.C. for re-summoning and re-examining Mst.
Sadia Bibi (P.W.11) has been dismissed by the learned trial court (Additional Sessions Judge Lahore).
2. The relevant facts of the case are that petitioner, Abid Hussain Bhatti is involved in case-FIR No,958/2011, dated 18.8.2011, under section 302/324, P.P.C., Police Station Kot Lakhpat Lahore, as an accused with the allegation, as brought forth by Hashim Khan (respondent No,2/ complainant) that he, being armed with pistol, directly fired at Muhammad Abid and Mst.Sadia Bibi, the complainant's offspring, at 4.20 p.m. on 18.8.2011, due to which they fell onto the ground badly wounded; Muhammad Abid succumbed to the injuries at the spot while Mst.Sadia Bibi was shifted to General Hospital, Lahore in serious condition for treatment of her injuries.
The petitioner's trial commenced on 20.9.2012, but he did not engage any counsel for him till he lodged a request before the learned trial court on 14.11.2012 for providing him a defence counsel at state expense as he was a pauper; his request was acceded to and Rao Amjad Ali Khan advocate was appointed as defence counsel at state expense on his behalf, who, dealt with the statements of five formal prosecution witnesses, the same day; some other prosecution witnesses were recorded in different intervals by the learned trial court, which also included examination of Mst.Sadia Bibi (P.W.11) on 2.3.2013; the prosecution case was at its fag end stage, when petitioner moved, an application under section 540, Cr.P.C. on 12.11.2014 with the prayer to re-summon and reexamine Mst.Sadia Bibi (P.W.11), which was dismissed by the learned trial court through the impugned order, hence, the instant petition.
3. Learned counsel for the petitioner has submitted that learned trial court showed undue haste in recording the prosecution evidence as it compelled Rao Amjad Ali Khan advocate to cross- examine as many as five prosecution witnesses, the same day, when it appointed him as defence counsel at state expense on behalf of the petitioner; Mst.Sadia Bibi (P.W.11) is an eye-witness of the occurrence, who should have been recorded by affording a fair opportunity to the learned defence counsel to prepare the brief, but it did not so happen and learned trial court hurriedly recorded her to the disadvantage of the petitioner; learned defence counsel had too a little time at his disposal to prepare the brief, therefore, he could not properly cross-examine P.W.11, which put the petitioner's case in a perilous condition; the application moved by the petitioner has not been given due consideration by the learned trial court and it has been rejected by it on flimsy grounds, thus causing serious prejudice to him.
4. After hearing the learned counsel and going through the available record, it is observed that the impugned order does not appear to have been passed implausibly or irrationally, nor could it be considered to have been drawn in violation to the settled principles of law on the subject. Learned trial court made every possible effort to remain as within the spirit of the law as possible and gradually-proceeded ahead with the trial of the petitioner by affording him every opportunity to defend himself in the best possible way. It transpired from the record that the petitioner was provided the services of a defence counsel at state expense, on 14.11.2012 only after he showed his disability to engage a private counsel on his own, being a person of little means. It was Rao Amjad Ali Khan advocate, who did the duty of defence counsel at state expense on behalf of the accused/petitioner and he was flanked by Malik Amjad Pervaiz advocate, when he filed Wakalatnama on his behalf on 7.12.2012, as his privately engaged counsel. It was a duo of the counsel, which defended him at trial.
5. The statement of Mst.Sadia Bibi (P.W.11) was recorded on 2.3.2013, about 31/2 months after the petitioner had been provided with the services of a defence counsel at state expense and about three months, after he had privately engaged a counsel to represent him at the trial. He, however, reposed higher degree of confidence in Rao Amjad Ali Khan advocate, the learned defence counsel, as he called upon him to cross-examine P.W.11. The interlocutory order of the said date did not reveal that the petitioner showed any reservations about the capability of the learned defence counsel, when he grilled the said prosecution witness. It looked all fine about the said day's proceedings. The trial of the petitioner inched along and team of the counsel representing him got further strengthened by the joining of Mr.Liaqat Ali advocate, who also submitted his Wakalatnama on his behalf on 19.3.2014. It was for the first time on 11.7.2013, when Muhammad Ramzan SI/I0, the only 'prosecution witness left to be examined then, appeared before the learned trial court for his examination but he could not be recorded due to power-failure. Thereafter, he appeared before the court off and on and his statement-in-chief was lastly recorded by the learned trial court on 27.5.2014 as P.W.12. He was, however, cross-examined by the defence on 9.5.2015, about a year thereafter. The petitioner is now bound to make statement under section 342, Cr.P.C. on 28 3.2016.
6. It was in between the recording of examination-in-chief of P.W.12 on 27.5.2014 and cross- examination on him on 9.5.2015, when the petitioner moved an application under section 540, Cr.P.C. on 12.11.2014, envisaging therein re-summoning and re-examining Mst. Sadia Bibi (P.W.11), real daughter of the petitioner, with the contention that she had not been properly cross-examined by the learned defence counsel, who represented him at state expense. This application was dismissed by the learned trial court through the impugned order on 28.1.2015. The record would tell that it was not the learned defence counsel alone who represented the petitioner then, rather a privately engaged counsel Malik Amjad Pervaiz advocate also represented him on the said occasion. They had all the time in the world to prepare the brief, so it could not be argued that preparation of case by the petitioner's counsel suffered from paucity of time, when they confronted the said witness to grill her. The provision of a defence counsel at State expense was a right of the accused to be respected, who for reason of his poverty or otherwise, showed inability to engage a counsel privately, so he was timely obliged by the learned trial court, as it provided him the services needed and made sure that no injustice or inequity was done to him due to any rash, though not there, act of the court. Being a favorite child of the law, he was dealt with in a motherly way by the learned trial court, despite it occasionally found his conduct disorderly, stubborn or unethical, meant to delay the trial by erecting stumbling block in its way. He was patiently extended as number of opportunities to cross-examine the said prosecution witness as he sought for, so it could not be said by him that he had been dealt with unjustly or discriminately by the court. His team of advocates had months of time at their disposal to get ready for the day when they cross-examined Mst. Sadia Bibi (P.W.11), though learned defence counsel at state expense led from the front. He must have used every bit of his intellect to cross-examine the female witness.
Learned counsel for the petitioner has made a queer argument, that cross-examination on P.W.11. was completed by the learned defence counsel in about 1-1/4 page, which could not be considered plenteous nor did it show an ideal approach to interview an eye-witness. When asked, what should be the of cross-examination on an eyewitness, the learned counsel offered a sheepish smile. Learned trial Court has certainly been vested with adequate powers under section 540, Cr.P.C. to summon and examine or re-summon and re-examine any witness in the trial before pronouncing the final verdict, but said provisions of the Code did not ingrain any such interpretation whereby it should be allowed to be used by a party to fill-in the lacunae of its case or to unnecessarily protract proceedings of the trial to defeat the ends of justice. This is what the learned trial Court has kept in view while dealing with the application of the petitioner under section 540, Cr.P.C. There was no occasion for the learned trial court to have thought in terms, otherwise. The impugned order has been passed strictly in accordance with the requirement of the law and it did not lack any virtue of a goodly legal order. This petition, being bereft of merits, is dismissed in limine.