Raja Saeed Akram Khan, C.J.--The accused-appellant is facing trial before the Additional District Criminal Court, Muzaffarabad in the offences under Sections 18, ZHA and 302, APC. During the course of trial, he filed an application under Section 540, Cr.P.C for recalling PW-2 and 3 and providing an opportunity for cross-examining them. The application stood rejected by both the Courts below.
2. Syed Zulqarnain Raza Naqvi, Advocate, the learned counsel for the appellant submitted that under Section 540, Cr.P.C, the trial Court is empowered to re-summon the witnesses at any stage of the proceedings. The appellant filed the application in this regard but his application has illegally been dismissed by both the Courts below. He further submitted that for just conclusion of the case recalling of aforementioned witnesses was inevitable but this aspect has also not been considered by the Courts below. He also submitted that the verbal assertions made by the appellant during arguments have also not been properly taken into consideration by the Courts below which warrants acceptance of this appeal.
3. The learned Advocate General stated that the prosecution witnesses were subjected to cross- examination by two counsel engaged by the appellant and now he has engaged another counsel who filed an application for recalling of PW.2 and 3. Such a practice is not allowed under law, hence, the Courts below have rightly rejected the application. He placed relience on the case reported as Dilbar vs. The State [PLD 1986 Karachi 385].
4. The learned counsel for the complainant-respondent submitted that the appellant has already been given opportunity to cross-examine the prosecution witnesses, hence, his application filed at belated stage for recalling the prosecution witnesses is not maintainable which has rightly been turned down by the Courts below. He further submitted that in an earlier round of litigation this Court had directed the trial Court to conclude the trial within a period of four months but the appellant is trying to further linger on the case.
5. We have heard the learned counsel for the parties and gone through the record. The appellant has filed an application under Section 540, Cr.P.C. before the trial Court for recalling of PW.2 and 3.
The referred section reads as under: "540. 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 re-call and re- examine any person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it essential to the just decision of the case."
It appears that the statutory provision (supra) is divided in two parts. The first part is discretionary in nature whereas the second is mandatory. According to the first part, it is discretion of the Court to summon any person as witness suo-moto or on application, whereas, according to second part, power to summon, examine, recall or re-examine any person as witness are to be exercised if his evidence appears to be essential for just decision of the case. Solitary purpose behind this exercise is to find out the truth by arriving at correct conclusion so that no innocent person may be punished merely because of certain technicalities or omissions on his part or on the part of the Court. If it appears essential to the Court that evidence is necessary for just decision of the case, under second part of Section 540, Cr.P.C, B it would be obligatory for a Court to examine such witness ignoring the technicalities and formal objections, however, basic criteria while exercising powers under Section 540, Cr.P.C. is that if the Court comes to the conclusion that calling/reexamination of a witness is essential for just decision of the case, in that eventuality the Court has no option C except to recall and examine the witness but the Court has to keep balance while exercising such powers that no party should be allowed to fill up the gaps.
6. The learned Advocate General has strongly pressed that earlier the appellant engaged two counsel who were provided opportunities to cross-examine the prosecution witnesses and now just to fill up the lacunas, he engaged another counsel who has filed the application for recalling the witnesses and providing him an opportunity of cross-examining them. We are fully in agreement with the averments of the learned Advocate General that such practice cannot be allowed. It is settled principle of law that opportunity of cross-examination cannot be repeated without valid reason and not on the ground that a new counsel has been engaged. Reliance in this regard may be placed on the case reported as Dither vs. The State [PLD 1986 Karachi 385], wherein, it has been held that: "In the instant case all the prosecution witnesses were already examined and they were also cross-examined by the counsel engaged by the accused. In the first instance Mr. Pir Ali Nawaz, Advocate represented accused in whose presence complainant and four other witnesses were examined and duly cross-examined. After that, accused changed his counsel and Mr. Pir Ali Nawaz, Advocate was replaced by another counsel by name Mr. Yousifani and remaining prosecution witnesses were examined in his presence and were cross-examined by him. That is how the prosecution case came to its end and the side of the prosecution was closed and the case was put was put off for recording statement of accused under section 342, Cr. P.C. At that belated stage accused again changed his mind and changed his advocate for the third time. This time he brought in Mr. Allandino Memon, who came in the picture when the whole evidence of the prosecution had already come on the record in the normal course and according to law with proper opportunities allowed to the defence for cross-examination. It appears from the impugned order as well as from the arguments advanced by Mr. Allandino Memon that apparently there is no other justification for making a request for recall of P.Ws, who have already been cross- examined except that the new counsel engaged now has deemed it fit and proper to cross- examine P. Ws. on a particular point, hence for that reason the Court should allow such request.
This would be unfair to the other Advocates who were already in the case and who have conducted cross-examination of the witnesses on behalf of the accused. It will also smack of discrimination in favour of the new counsel which is not allowed under the law. If Section 540, Cr.P.C is allowed to be invoked by the new counsel, then it will amount to setting up a dangerous precedent and there will be no end and every new counsel who is engaged by accused after the examination and cross-examination of prosecution witnesses would make a request for recall of all those witnesses already cross-examined because he has thought of a new point for the line of defence. I am afraid Section 540, Cr.P.C. is not available on statute book for 'this purpose and even the mandatory part of it gives power to the Court to summon and examine or recall or re- examine any such person if his evidence appears to be essential to the just decision of the case".
In the instant case, the statements of PW.2 and 3 have already been recorded by the trial Court and their cross-examination has already been conducted by the defence counsel, hence, any application at a belated stage just on the ground that some facts (as mentioned in concluding paragraph of the order of the trial Court) need further elaboration, is against the essence of law.
Even otherwise, the trial Court is not satisfied that recalling of said witnesses is mandatory and we are not supposed to substitute the wisdom of the trial Court in this appeal.
In view of the above, the Courts below have very wisely resolved the dispute through speaking judgments, which are not open for interference by this Court. Resultantly, finding no force this appeal along with application for interim relief is dismissed.