AFTAB AHMED GORAR, J.---Applicant Abdul Qaseem filed the instant Criminal Revision Application under section 435, Cr.P.C. read with section 439, Cr.P.C. with the prayer to set aside the order dated 19.12.2019 whereby the learned 1st Additional Session Judge Karachi-Central allowed the application under section 540, Cr.P.C. filed by the counsel for the accused person for recalling of the witnesses for re-examination in Sessions Case No. 681 of 2019 arising out of Crime No. 72/2019 under sections 302/34, P .P.C. registered with Police Station Taimoria.
2. At the outset, learned counsel for the applicant submitted that during trial of the above case the examination-in- chief of the prosecution witnesses was recorded and the witnesses were cross-examined thoroughly by the learned counsel for the accused. However , when the trial was at the stage of disposal the counsel for the accused, just to fill the lacunas and linger-on the proceedings had moved an application under section 540, Cr.P.C. for recalling/re- examining the witnesses which application was allowed by the trial court vide order , impugned herein. Learned counsel for the applicant argued that the impugned order allowing the application under section 540, Cr.P.C. is illegal and against the all norms of justice, therefore, the same is liable to be set aside. He further argued that the impugned order was passed in hasty manner mechanically without going through the law on the subject and without applying its judicial mind. He further argued that learned trial court failed to appreciate the very fact that the application under section 540, Cr.P.C. moved by the counsel for the accused did not indicate as to why both the witnesses who have already been examined are to be re-examined. Learned counsel for the applicant next argued that court has powers to recall the witnesses if it deems fit but in the present case admittedly the witnesses were thoroughly examined and the same is on record and filing the application at the stage of disposal is just to linger on the proceedings. To support his contentions, he has relied upon the cases of Javed v. The State (2018 MLD 1533 ), Dildar v. The State (2016 YLR 546), Nan Qadri v. Anti-T errorism Court No. II, Karachi and another (PLD 2014 Sindh 364), Muhammad Asti Miraj v. The State and 3 others (PLD 2015 Lahore 26), Muhammad Awais v. The State and others (PLD 2016 Lahore 533) and the case of Zaheer Abbas v. The State (2008 YLR 1225 ).
3. Learned Additional Prosecutor General Sindh has supported the impugned order and submitted that the learned trial Judge has rightly allowed the application moved by the accused for recalling/re-examining the witnesses. The learned Addl. P. G. has, therefore, vehemently urged that there is no ground to interfere in the impugned order as no illegality or irregularity has been committed by the learned Judge while passing the impugned order and as such this Cr . Rev . Application is liable to be dismissed.
4. I have given due consideration to the arguments advanced by the learned counsel for the applicant and the learned Additional Prosecutor General, Sindh, so also the case law cited by learned counsel for the applicant.
5. Section 540, Cr.P.C. provides that "any Court may, at any stage of any inquiry , trial or other proceedings under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person, if his evidence appears to it essential to the just decision of the case". Bare reading of section 540, Cr.P.C. transpire s that where an evidence is essential for just decision of the case, it is obligatory upon Court to allow its production and examination. Such power can only be exercised when the Court deems necessary to go at the truth of the matter , so as to come to a proper conclusion and not to allow the parties to fill the lacunae. Even otherwise it was not shown as to how the re-examinati on of the said witnesses had a material bearing on the case or that witho ut re-examination the ends of justice could not be met, particularly when the persons who have already been examined and cross-examined. Mere presenc e of some flaw in the case could not justify summoning of a witness under section 540, Cr.P.C. To fortify this view, reference can be made to the cases of Abdul Sattar v. The State (1986 PCr.LJ 1536) and Mst. Safdar Jan v. The State and another (1997 PCr.LJ 1553).
6. Perusal of impugned order clearly shows that he application under section 540, Cr.P.C. was filed on 19.12.2019 and on the same day notices were issued to the parties and on the same day the said application was heard and decided, which shows that trial court was in hurry and passed the impugned order without justifying any reason.
The power to recall 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 filing the application under section 540, Cr.P.C. the accused person intend to fill up lacunas and to delay the trial as the witnesses have already been examined thoroughly . Re-examination of witnesses may be ordered to rectify an obvious mistake or omission for arriving at a just decision in the matter . The impugned order does not show existence of such circumstances to justify further cross-examination of the witnesses. The witnesses can only be recalled for examination in exceptional and in rare cases where interest of justice so demands but in the present case witnesses have been cross-examined at length. In the circumstances, the impugned order is not tenable in law and the same is set aside. The captioned Criminal Revision Application is allowed in the above terms.