RAZA ALI KHAN, J. Impugned, herein, is the judgment/order dated 07.11.2023, passed by the High Court in Revision Petition No. 231/2023, whereby, the revision petition stood accepted.
2. The pertinent facts of the case pertain to filing of a revision petition by the contesting respondents before the High Court; alleging collusion, between the police and the petitioner, Muhammad Altaf Kiani, resulting in the registration of case against them under FIR No.41/2020.
Subsequently, the respondents were formally charged through a report under section 173, Cr.P.C dated 16.06.2020, before the Court of competent jurisdiction. During the trial proceedings, the prosecution summoned Dr. Yasin as a witness on 29.12.2022, whose testimony included the exhibition of purported documents marked as Annexure "PN" and "PO". Following Dr. Yasin's statement, the prosecution called Dr. Ilyas, who provided an lstaswabia report on the alleged weapons, with the prosecution exhibiting his signature on the report. The petitioner subsequently sought to recall Dr. Yasin on 05.06.2023, to obtain exhibition of the Istaswabia Report. Subsequently, the trial court, on 23.08.2023 accepted the petitioner's application, summoning Dr. Yasin.
Dissatisfied with this decision, the respondents lodged a revision petition before the High Court.
After due proceedings, the High Court through an order dated 07.11.2023, accepted the revision petition, overturning the trial court's decision dated 23.08.2023.
3. Ch. Shoukat Aziz, the learned Advocate representing the petitioner, contended that the impugned order of the learned High Court contravenes legal principles, factual evidence, and the record of the case. He asserted that the High Court failed to recognize a crucial aspect: the purpose of recalling of witness was not to rectify gaps in testimony or alter the case's trajectory but rather to authenticate a document prepared in his official capacity. He asserted that the trial Court rightfully summoned the witness to verify the Istaswabi report through his statement, and thus, the High Court's acceptance of the revision petition and subsequent annulment of the trial Court's order on 07.11.2023, is erroneous and should to be recalled and set aside. Moreover, he cited Section 540 of the Criminal Procedure Code (Cr.P.C), which empowers Courts to summon or recall indispensable witnesses for the sake of justice. In the present matter, where the accused faces charges of murder involving a weapon subjected to medical examination, the witness's testimony on the Istaswabia report holds pivotal importance for the case's resolution. Hence, the trial Court's decision to recall the witness was judicious, whereas the High Court's misinterpretation of law renders its verdict subject to nullification. To strengthen his argument, the learned Advocate referred to legal precedents such as "Mst. Zubaida v. The State" [1990 SCMR 895] and "Syed Maqbool Khaliq and another v. The State" [2004 MLD 1099]. He further contested the High Court wrongly relied reliance on the judgment of this Court titled "Muhammad Javed v. State and another" [2018 SCR 336], wherein a similar request for the prosecution witness's recall was rejected. He finally prayed for acceptance of appeal.
4. On the opposing side, Mr. Tahir Aziz Khan, the learned Advocate representing Respondents Nos. 1 to 7, posited that the impugned order of the learned High Court aligns seamlessly with legal precepts. He contended that the High Court meticulously evaluated the case record in its proper context when issuing the impugned order, thereby rendering it immune to intervention by this Court. He asserted that the petitioner, in collaboration with law enforcement, unfairly implicated them in FIR No.41/2020, followed by a biased investigation resulting in a fabricated charge sheet. He argued that during the trial, the prosecution attempted to summon Dr. Yasin' a witness, to introduce "Istaswabia report," despite no mention of such a report in Dr. Yasin's testimony. He contended that the trial Court' order to recall of Dr. Yasin was arbitrary and unjust based on speculation rather than solid evidence. He stressed the importance of fair trial and asserted that summoning of Dr. Yasin was unwarranted and violated their legal right. Therefore, he argued that the High Court's decision to overturn the trial court's ruling was unjustified which was rightly set- aside by the learned High Court.
5. Having considered the arguments presented by the counsel for both sides and thoroughly reviewing the accessible case record, it is pertinent to refer Section 540 of the Criminal Procedure Code, 1908, for better understanding.
"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 persons if his evidence appears to it essential to the just decision of the case."
A meticulous examination of Section 540 of the Criminal Procedure Code reveals the extensive authority vested in the Court concerning the summoning or re-examination of witnesses post- cross-examination. Moreover, the provision stipulates that the Court's discretion is paramount in determining the necessity of such evidence for ascertaining truth and facilitating a fair adjudication. In criminal proceedings, the Court is mandated to operate on an inquisitorial basis, ensuring the presentation of all essential evidence for a just decision, irrespective of its impact on the parties involved. Procedural delays in introducing evidence or rectifying gaps in the case are immaterial if the evidence is crucial to a fair outcome. The accused retains the right to challenge the accuracy of introduced evidence through cross-examination. Moreover, in addressing concerns raised by the petitioner's counsel regarding perceived deprivation of the accused's rights or benefits, it is imperative to recognize that such arguments do not hold weight in criminal cases.
Unlike civil proceedings, the Court's approach must remain inquisitorial, prioritizing the pursuit of justice. Therefore, any oversight or omission by the complainant, Investigating Officer, or public prosecutor counsel should not hinder the Trial Court from rectifying such deficiencies by introducing relevant evidence and in this regard summoning or recalling any witness.
6. Section 540 of the Criminal Procedure Code (Cr.P.C.), empowers the trial Court to summon or recall witnesses or admit essential evidence, regardless of its formal admission status, if it is deemed necessary for a just decision. This provision covers both discretionary and mandatory summoning of witnesses, depending upon the evidence's importance to the case's resolution. Thus, any apprehension regarding the Court's exercise of this power as an attempt to rectify gaps or favor one party is unfounded. The Court is duty-bound to act in accordance with law, and may summon or recall any witness essential to a just decision, regardless of the stage of the trial or the nature of the evidence.
7. It is worth mentioning that once a witness has recorded his statement in examination-in-chief and has been cross-examined by the other side, the party may re-examine the witness; but the purpose behind re-examination is to give the witness an opportunity to explain any matter raised during cross-examination provided that these matters are restricted only to the questions raised during cross-examination and whose cross-examination has perhaps resulted in a muddled, confused or inconsistent statement between the testimony of witness in cross-examination and his prior statement in examination-in-chief. The primary purpose of cross-examination is to clarify such confusions and inconsistencies; however, re-examination cannot be employed to rectify the flaws and fill the gaps of the case. A party cannot introduce new facts or opinions during re- examination that should have been presented in examination-in-chief and were not addressed during cross-examination. Proper re-examination should focus on addressing the ambiguities raised during cross-examination with specific reference to those issues. Although re-examination is the right given to a party but it should not be used to introduce new facts or opinion at will. This perspective is supported by the recent judgment of this Court titled "Munir Ahmed and 07 others v.
Kaleem Abbasi and 03 others[1]" wherein, it was held as under: "6. In order to appreciate the stance of the petitioners, it will be worthwhile to refer section 540 Cr.P.C. as well as Article 132 of the Qanun-e-Shahadat Order, 1984, the same are extracted hereunder:- "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 persons if his evidence appears to it essential to the just decision of the case."
"132. Examination in Chief, etc.
(1) ...
(2) ...
(3) The examination of a witness subsequent to the cross-examination by the party who called him, shall be called his re-examination."
A conspicuous reading of section 540 Cr.P.C would show that widest powers have been conferred upon the Court when it comes to the question of summoning a witness or re-examination of a witness after cross-examination. It further states that it is up to the satisfaction of the Court regarding the evidence which in view of the Court appears to be essential for finding truth and to reaching a just conclusion. Article 132 of Qanun-e-Shahadat Order, 1984, empowers the Court to re-examine any witness after cross-examination which is essential for reaching the just decision of the case and with the object of finding out the truth or obtaining proper proof of such facts which lead to just decision which is the primary duty and motive of the Criminal Court. The object underlying, section 540 Cr.P.C is that it may not cause failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of witness examined from either side; determinative question is whether certain evidence is essential for reaching a just conclusion of the case? Section 540, Cr.P.C is general in nature which applies to all proceedings, trials, inquiries under Cr.P.C and empowers the Court to summon any witness at any stage of inquiry or trial, however, discretion conferred upon the Court should be exercised judiciously; as wider the power, the greater the necessity for application of judicial mind. It is a cardinal principle of Criminal Jurisprudence that the best available evidence should be brought before the Court. Although, the Court cannot compel either party to bring under examination any particular witness or witnesses and is left 'to the parties, but for the best interest of finding of truth, Court can draw an adverse inference in case of non-production of evidence or witness. However, the Court itself is empowered to summon and call the witnesses where it thinks necessary, but the same depends on the factual circumstances of each case determined by the relevant Court. This view is fortified from the case reported as Tamraiz Javaid Masih v. The State [2013 MLD 888], wherein, it has been observed that:- "....This omission, in my view, cannot be considered as an improvement in the case of prosecution while under section 540, Cr.P.C the trial Court at any stage can summon any person as a witness or recall or re-examine any person already examined, if his evidence appears to be essential to the just decision of the case."
7. It is also pertinent to mention here that once a witness has recorded his statement in examination-in-chief and has been cross-examined by the other side, the party may re-examine the witness; but the purpose behind re-examination's is to give the witness an opportunity to explain any matter raised during cross-examination provided that these matters are restricted only to the questions raised during cross-examination and whose cross-examination has perhaps resulted in a muddled, confused or inconsistent statement between the testimony of witness in cross-examination and his prior statement in examination-in-chief. The basic purpose of cross- examination is to remove such confusions and inconsistencies; however, tool of re-examination cannot be used for removing the flaws and fill the lacunas of the case. A party is not entitled to split its case by introducing new facts or opinion during reexamination that should have been raised in examination-in-chief and which were not subject of the cross-examination and a line of questioning on proper re-examination should be set for conducting it with specific references to the ambiguities arisen in the cross-examination. Although, re-examination is the right give to a party but it does not mean that the same must be used according to one's wishes and introduce new facts and opinions."
8. After reviewing the case record, it is evidence that the document in question, for which the complainant requested the Court's recall of witness No. 25, is a part of the trial Court's file (challan).
This document had previously been presented during the testimony of Dr. Rashid Ilyas, prosecution witness No. 27, who stated that Dr. Yasin was present when this opinion was sought. Moreover, it is noted that Dr. Yasin's name appears to be mentioned on the Istaswabia report. Regarding the aforementioned Istaswabia report, the police raised a crucial question regarding whether weapons/devices could cause fatal harm, which requires clarification by a medical professional.
The trial Court clarification by a medical professional. The Trial Court correctly recognized the necessity of Dr. Yasin's testimony for the just equitable resolution of the case citing legal precedents such as Mst. Zubaida v. The State [1990 SCMR 895] and Syed Maqbool Khaliq and another v. The State [2004 MLD 1099], as referenced by the petitioner's counsel.
9. Having concluded that the trial Court properly accepted the petitioner's application, it follows that the High Court made a significant legal error in issuing the impugned order. Therefore, considering these circumstances the impugned judgment/order of the High Court is overturned upon accepting of this revision petition, and the trial Court's judgment is reinstated. The application for interim relief is also disposed of accordingly.
1. 2022 SCR 992