Raza Ali Khan, J. The titled direct appeal has been filed against the order passed by the High Court on 5.6.2023, whereby the revision petition filed by the appellant, herein, has been dismissed.
2. The appellant and another currently facing trial in a case under Section 320, APC, in the Court of Additional District Criminal Court, Hajira. They are accused of engaging in reckless race on their tractor trolleys, both laden with sand, attempting to pass each other. One of these trolleys driven by the accused-appellant, collided with the deceased Abdul Hameed s/o Makhan Khan (brother of the complainant), causing his immediate death. After recording of the evidence, when the case was at the verge of recording of statement under Section 342, Cr.P.C., the appellant, herein, moved an application on 24.11.2021 for recalling P.Ws-1, 2, 3, 4, 5 and 9 for cross-examination, stating therein that at the time of cross-examination of the aforementioned witnesses, his counsel was not present in the Court and Sadar Munawar, Advocate, who cross-examined them, was not authorized by him for the purpose. The learned trial Court rejected the application vide order dated 5.10.2022. Feeling aggrieved, the appellant, herein, filed a revision petition before the High Court, which has met the same fate through the impugned order dated 5.6.2023, hence, this appeal.
3. Mr. Shahid Ali Awan, the learned advocate for the appellant, after narration of necessary facts, submitted that both the Courts below have not evaluated the contents of application filed by the accused-appellant in a legal manner and rejected the application without any legal justification.
The learned counsel submitted that in the light of settled principle of administration of justice, every accused person is to be afforded an opportunity of fair trial, therefore, it was enjoined upon the learned trial Court to consider the request of the accused-appellant and recall the witnesses for cross-examination. The learned counsel further submitted that the learned High Court has dismissed the revision petition on technical ground instead of deciding the same on merits, while observing that necessary party was not arrayed as respondents, whereas the case before the learned High Court was not for direction against any public functionary, rather the revision petition filed, which was liable to be decided on merits. The learned counsel next submitted that without valid power of attorney, counsel allegedly appearing on behalf of the accused-appellant before the trial Court, was not authorized to cross-examine the witnesses. In support of his arguments, the learned counsel referred to and relied upon the cases reported as Azmat alias Papu & 3 others vs. Mst. Nisa Begum & 2 others [2007 SCR 67], Muhammad Iqbal vs. Sharafat & 5 others [2003 SCR 148] and Asad Nawaz vs. Zulfiqar Afzal Khan & others [2019 P.Cr.L.J 883].
4. On the other hand, Mr. Rizwan Ahmed Mughal, the learned advocate for the complainant, defended the impugned order passed by the High Court while submitting that the same is perfectly legal and in accordance with record. The learned counsel submitted that the application for recalling the witnesses has been filed by the accused-appellant just to delay the trial of the case. According to the learned counsel, the witnesses sought to be recalled, have been cross- examined by counsel of the appellant in his presence and without having taken any objection at the relevant time, now he cannot take such stand. The learned counsel next submitted that the appellant failed to prove his version before both the Courts below that he did not engage Sardar Munawar Hussian, Advocate, as his counsel before the trial Court and the application raising objection at a later stage tentamounts to cause unnecessary delay in completion of trial. In support of his submissions, the learned counsel referred to and relied upon the case reported as Syed Hasan Abbas Rizvi vs. The State [1993 P.Cr.L.J 1630].
5. We have heard the learned counsel for the parties and perused the record made available with utmost care.
6. Under Section 540 Cr.P.C., the Court is empowered to summon a person as witness or re- examine any person already examined, at any stage of proceedings to cull out the nuggets of truth from the evidence, if such evidence appears essential for just determination of controversy involved in the matter. The legal provision extends wider discretionary powers to a Court to examine any witness as a Court witness or to resummon a witness for cross-examination for safe administration of justice. The basic object of law is that every party should be treated fairly without putting the other party in a disadvantageous position and the Court should ensure that no prejudice is caused to the accused nor undue advantage is given to the prosecution. It is only for the purpose of the just decision of a case that the Court can have resort to the provisions of Section 540 Cr.P.C. for summoning the witnesses. The power must not be exercised to advance the cause of the prosecution, or that of the defence and the Court must guard against exploitation of this power by the parties who had ample opportunity to produce evidence within their knowledge and must not put one of the parties in a position of advantage.
7. Keeping in mind the above-referred principle of law, we have examined the application filed by the accused-appellant for recalling the witnesses for cross-examination. The only reason advanced in support of the application is that the learned counsel who cross-examined the witnesses on behalf of the accused-appellant was not authorized in this behalf. The stance taken by the accused-appellant is, however, negated from the available record, which reveals that the witnesses Sought to be recalled were cross-examined by his counsel in his presence. In this regard, Sardar Munawar Hussain, the learned advocate, affirmed before the trial Court that he has cross- examined the witnesses on behalf of Faheem Afsar, appellant herein, and Kushal, the co-accused.
The learned advocate also offered to file an affidavit in support of his submission. The wakalatnam a in favour of Sardar Munawar Hussain, advocate, by Faheem Afsar is admittedly part of the record, which is also annexed by the appellant with the paper-book. A perusal of the wakalatnam a reveals that the same has been filed on behalf of Faheem Afsar, appellant herein, however, the stance of the appellant is that it was not signed by him. If the stance of the appellant that he never signed the wakalatnam a is admitted as true, even then it is now well-settled law that any defect or omission in signing the wakalatnam a is mere irregularity, which does not vitiate the proceedings. Non-signing of wakalatnam a being a technical fault, should not have made basis for reopening the matter nor on this ground, the witnesses could be recalled, because it is fundamental principle of law that technical approach, which defeat justice, should not be permitted. Especially in the case in hand, the appellant had appeared in person along with Sardar Munawar Hussain, advocate, who cross-examined the witnesses on his behalf and the appellant did not object to at any stage, rather impliedly accepted him as his counsel.
8. It may also be, observed here that in criminal cases, the formal requirement to include a necessary party may not always be strictly mandated. However, the principles of natural justice, which are fundamental to a fair and just legal system, often necessitate affording individual, the opportunity to defend themselves, when any act is alleged against them. This fundamental concept stems from the idea that justice must not only be done but must also be seen to be done.
Therefore, when an act is attributed to a person within a criminal case, it is generally considered an essential element of due process to provide the person with the chance to present their side of the story, offer counter arguments and provide evidence in defence. This not only upholds the rights and liabilities of person facing the allegations but also ensures the integrity and fairness of criminal justice system, ultimately contributing to the pursuit of truth and justice. It is an inherent part of the principle that no one should be condemned unheard, emphasizing the importance of granting individuals the opportunity to rebut any allegation made against them, thereby preserving the core principles of natural justice within the realm of criminal law, hence, it was enjoined upon the accused-appellant to array Sardar Munawar Hussian, advocate, as party in order to substantiate his version but neither he arrayed him as party in the proceedings before this Court or the Courts below nor did he approach at any forum against him. Both the Courts below have not committed any illegality or irregularity while passing the impugned judgment, therefore, no interference by this Court is required. The case-law referred to and relied upon by the learned counsel for the appellant, involving distinguishable facts, is not helpful for the case of the appellant.
The result of the above discussion is that finding no force in this appeal, the same is hereby dismissed.