ABDUL MAALIK GADDI, J--- Through this criminal revision application, the Applicant/accused has assailed the legality and propriety of the order dated 10.06.2019 passed by the learned Additional Sessions Judge Xth Karachi West, in Sessions Case No.1992/2014 Re: The State v. Sanaullah arising out of FIR No.355/2014 under section 302, P.P.C. at Police Station Peerabad, Karachi, whereby the learned Presiding Officer of the said Court after hearing the parties, dismissed the Application under section 540, Cr.P.C. filed by the Applicant/accused for re- calling and re-examining PWs Syed Hussain and Mst. Nasreen (alleged eye-witnesses of the case).
2. Facts necessary for the disposal of this Revision Application are that Complainant Jehangir . Badshah lodged FIR being Crime No.355/2014 under section 302, P.P.C. at Police Station Peerabad, Karachi against the applicant/accused for committing alleged murder of his brother Alamgir and after due investigation the Challan was submitted by the Investigating Officer and after submission of Challan, charge was framed and the evidence of Syed Hussain and Mst. Nasreen were recorded in open Court but during trial the counsel for the applicant/accused filed application under section 540, Cr.P.C. for re-summoning of the said witness es for further cross-examination but the said application was dismissed through impugned order .
3. It is argued by learned counsel for applicant/accused that the impugned order passed by the learned trial Court is against law and facts and while passing the impugned order the trial Court did not consider the valuable rights of the applicant/accused, however during the course of his argument he has raised following grounds for allowing this revision application. "a. That the right of fair trial has been guaranteed under Article 10-A of the Constit ution, which is fundamental right and learned trial Court violated the same by dismissing the Application of applicant through impugned order . b. That for the complete justice the re-summoning of PW2 and PW3 for cross-exa mination is very much important so that the veracity of the above mentioned prosecution witnesses is thrashed and weighted through proper cross- examination because earlier cross-examination conducted on both the witnesses by previous counsel is not proper and no material question has been put by the previous counsel for digging out the actual facts for just decision of the case. c. That the learned trial Court without applying its independent judicial mind dismissed the application of applicant in cursory manner , hence committed illegality and irregularity . d. That the trial Court by not allowing application has violated the fundamental right of Fair trial of the accused/applicant as such accused/appli cant is charged in murder case for which maximum punishment provided by law is Death penalty and if proper opportunity for cross-examination is not provided the rights of the accused will be highly prejudiced. e. That there is no hurdle or legal bar in re-summoning the above mentioned PWs for re-cross-examination. f. That for the ends of justice and proper adjudication, the re-summoning, re-examination of above mentioned PWs is very much important otherwise the applicant will suf fer great loss."
4. In support of his arguments he has relied upon the case laws i.e. PLD 1991 SC page 430 Mehrzad Khan v. The State 2004 PCr.LJ page 699, Karachi Muhammad Yunus v. The State, PLD 2018 Lahore page 13 Muhammad Falak Sher v . The State and others (4) 2007 PCr .LJ 905 Muhammad Ashraf v . State and 4 others..
5. As against this, learned Additional P.G. Sindh has opposed this criminal revision application and submits that the impugned order is perfect in law and on facts. She further submits that when witnesses had already been made subject to lengthy cross-examination, they could not be re-summoned for further cross-examination to fill up the lacuna. To support her contention, she has placed reliance upon case of Rasheed Ahmed v. Ibrahim and others reported in 1996 PCr .LJ page 1439 .
6. I have heard learned counsel for the parties at a considerable length and have perused the record.
7. The perusal of impugned order shows that prosecution witnesses namely Syed Hussain and Mst. Nasreen were already cross-examined by the counsel for the accused. It appears from the progr ess report of the case submitted by the learned Presiding Officer of the trial Court that in this matter all the prosecution witnesses have already been examined and on 11.07.2019, the statement under section 342, Cr.P.C. of accuse d Sanaullah was also recorded, thus it appears that trial is about to conclude, but the counsel for the accused filed application under section 540, Cr.P.C. for recalling and re-examining the said witnesses as according to him these witnesses were not cross- examined properly by the previous advocate.
8. There is no cavil that section 540, Cr.P.C. is divided in two, parts. The first part is discretionary while second part is mandatory . The powers under second part could only be exercised when the Court is satisfied that further cross- examination will be essential for the just decision of the case. The section 540, Cr.P C, imposes responsibility upon the Court that these powers must be exercised with due care and caution. The court cannot use these powers to advance the cause of the prosecution or defence but these powers a only meant to advance the cause of justice.
The powers under section 540, Cr.P.C., are not meant to fill in the gaps or lacunas left by the parties to the proceedings.
9. In the case of Dilbar v. The State PLD 1986 Kar. 385, it was observed that opportunity of cross-examination cannot be repeated without valid reasons and also not on the ground that now a new counsel has been engaged and he has thought up a new line of defence according to which he wants to cross-examine the prosecution witnesses once again and with these observations the said revision applicatio n for recalling the prosecution witnesses for further cross-examination was dismissed.
10. In my opinion trial cannot be held in accordance with the wishes of the counsel for applicant/accused and the witnesses cannot be re-summoned only on the ground that the earlier defence counsel had failed to put material and necessary questions to the said witnesses. The said witnesses had already appeared and were subject to cross-examination and neither they could be punished nor the trial could be delayed only on the basis of such a situation as argued by counsel for applicant/accused. It is established law that neither the defence nor the prosecution can be allowed to fill the lacuna by re-summoning of the witnesses under section 540, Cr.P.C. If this practice is allowed none of the trial would ever come to an end and this practice would amount to opening of Pandora box.
11. It is also noted that in this matter Syed Hussain and Mst. Nasreen were examined by the trial Court on 16.04.2015 and 12.02.2016 respectively , but the application under section 540, Cr.P.C. was riled in the month of May 2018 almost after two years and if at this stage and under the aforementioned facts and circumstances if this application is allowed certainly trial would further delayed and prosecution would be also seriously prejudiced. No sufficient or valid ground has been raised by learned counsel for applicant to interfere in the impugned order . In criminal administration of justice, each case has to be decided on its own facts and circumstances and Courts are required to be exercised jurisdiction indep endently as held in case of The State v. Haji Kabeer Khan reported in PLD 2005 SC page 364. The case laws cited by the learned counsel for the applicant/accused has been perused and considered by me but did not find applicable to the facts of the present case, therefore the same are not helpful for him.
12. The upshot of the above discussion is that the present criminal revision application for re-calling the prosecution witnesses named above for further cross-examination merits no consideration. Consequently , it is dismissed along with listed application.
13. This matter pertains to year 2014, trial of the case has already been delayed , under the circumstances, trial Court is directed to decide the matter within thirty (30) days after receipt of this order in accordance with law. Office is directed to immediately send the copy of this order to the trial Court for information and compliance.