This criminal revision petition in terms of section 435 Cr.P.C. has been directed against order dated 18.02.2020, passed by the learned Additional Sessions Judge, Rahim Yar Khan whereby the application filed by respondent No 2-Maryam Bibi (complainant) u/s 540 of Criminal Procedure Code, 1898 (hereinafter called as "the Code" ) has been allowed and witness Muhammad Sharif, investigating officer of the case (PW-8) was summoned for re- examination.
2. Brief facts of the case are that respondent No.2- complainant of case FIR 83/18 dated 20.03.2018 registered u/s 376 & 365-B P.P.C at Police Station Iqbalabad, District Rahim Yar Khan filed an application u/s 540 of the Code before the learned Additional Sessions Judge, Rahim Yar Khan for re-sum moning and re-examination of Muhammad Sharif S.I/I.O (PW-8) on the ground that on 30.05.2019, the said witness produced the minor (Fahad) who was born from the womb of Maryam Bibi and accused-petitioner Zahid Hussain to Punjab Forensic Science Agency , Lahore (PFSA) for conducting DNA test. During the testimony of said witness, name of the accused- petitioner was inadvertently written as "Hussain" instead of "Zahid Hussain" so to remove the ambiguity about the name of the accused, the above-mentioned application was filed before the learned trial court which was allowed vide impugned order; hence the instant criminal revision petition.
3. Learned counsel for the petitioner submits that impugned order has been passed by the learned trial court while ignoring the real facts, circumstances, available record and law on the subject; that testimony of PW-8 was recorded in the presence of the parties. Further maintains that re-examination of any witness can be allowed only to explain any matter brought on record through cross-examination, however , such was not the position in this case, hence the impugned order is liable to be set aside.
4. Conversely , learned Law Officer assisted by learned counsel for respondent No.2 has defended the impugned order by stating that while re-summoning PW-8, who had already been examined, the learned trial court had not committed any illegality as the same exercise was within the domain of the learned trial court, as section 540 of the Code exclusively empowers the court to re-call or re-summon any witness for re-examination whose testimony appears to be necessary for just decision of the case and prayed that the instant petition may be dismissed being not maintainable and having no force.
5. I have heard the learned counsel for the parties and gone through the available record.
6. Section 540 of the Code reads as under:- "Power to summon material witness or examine person present.... Any Court may, at any stage of any inquiry , trial or other proceeding 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."
The afore-quoted section gives plenary powers to the trial court to summon material witness, or re-call/re-examine any other witness already examined, at any stage of any enquiry , trial or other proceedings under the Code but on going through the said section and Articles 132 & 133 of Qanoon-e-Shahadat Order , 1984 (hereinafter called as "the Order" ) and keeping them in juxtaposition, it seems that the jurisdiction and powers given to the learned trial court u/s 540 of the Code are directly linked with the said Articles. For convenience of reference, Article 132 of "the Order" is reproduced as under:
132. Examination-in-chief, etc. (1) The examination of a witness by the party who calls him shall be called his examination-in-chief.
(2) The examination of a witness by the adverse party shall be called his cross-examination.
(3) The examination of a witness subsequent to the cross-examination by the party who called him, shall be called his rc-examination."
So, Article 132 of the Order describes the mechanism and order according to which the witness is to be recorded by the learned trial court whereas Article 133 thereof, explains the situation in which re-examination of a witness can be permitted. Sub-Article (3) of Article 133, of the Order reads as under:-
133. Order of examination.
(1) ------
(2) ------
(3) The re-examination shall be directed to the explanation of matters referred to in cross-examination and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that mailer ."' (emphasis provided)
So, on going through the above-quoted provisions of the law, there is no denial of the fact that re-examination of a witness is permissible under the law but the purpose behind it is not to fill in the lacuna, in the prosecution case and re-examination is confined to a point/fact which comes or introduced in cross-examination of a witness, meaning thereby that re-examination shall be directed to explain the matter referred to in cross-examination. To further strengthen my point of view, I am fortified by the judgments of this Court reported as Tanveer Shahzad Vs. the Stale (2003 PCr.LJ 751), The State Vs. Aashir Nadeem (2019 YLR 768) and judgment of Federal Shariat Court titled as Abbas and another Vs. The Stale (2003 PCr.LJ 624). In the instant case, the application for re- summoning the witness had been moved by the complainant after closing the evidence and even after recording the statement u/s 342 Cr.P.C. when the case was fixed for final argument. So, I found that the said application has been made to fill in the lacuna in the prosecution case. As discussed above, re-summoning and re-examination of a witness can be allowed to explain any point brought on record through cross-examination and admittedly . In the case in hand, the prosecution wanted to explain the point which has uttered by the witness in his examination-in- chief which exercise is not permissible under the law .
7. There is yet another factor which I have observed above that through the said application for re-examination, the prosecution wanted to fill in the lacuna in its case. I, while relying upon the case of Abbas and another (supra), hold that there is no provision in the Code or the Order that a witness can be re-called for re-examination about a mistake made by him, while appearing at trial even if it occurred inadvertently . The authors of the law in their wisdom had not added such a provision because that would have amounted to give a licence to the prosecution to request for re-calling any witness for correcting any portion of his statement detriment to the prosecution. Of course, a witness can be re-called if he was not examined on some issue pertaining to the case:
8. In the light of discussion made supra, I found that the application filed by the petitioner-complainant had been allowed by the learned trial court on wrong premises. Resultantly , the instant revision petition is allowed and impugned order dated 18.02.2020 is hereby set aside.