1. ' This is a criminal revision application filed under sections 435, 438 and 439, Cr.P.C. Challenging the order passed by the learned IVth Additional Sessions Judge, Hyderabad on 5-1-1986 refusing to recall P.Ws. Fakir Muhammad, Abdul Qayoom and Abdul Wahid.
2. ' The brief facts giving rise to the present revision application are that the applicants are facing trial under section 307, P.P.C. Read with section 34, P.P.C. In Crime No, 80/83 of Police Station Cantonment, Hyderabad, before the learned IVth Additional Sessions Judge, Hyderabad. That on 11- 12-1985 the above case was fixed for hearing and it is the case of the learned counsel for the applicant that he was present in the Court up to 9-40 a.m. But the matter could not proceed up to that time and therefore, he left the Court in order to attend to other professional work before other Courts. When at about 12 noon the learned counsel came back he came to know that the above witnesses were examined in his absence and there was no cross-examination. That the application was moved under section 540, Cr.P.C. For recalling the above witnesses for cross-examination but the learned Additional Sessions Judge was pleased to reject the same. The present revision application is directed against the said order.
3. ' It has been contended by Mr. Jehangir H. Shah that it was a case of serious nature inasmuch as the applicants were challenged under section 307/34, P.P.C. And the evidence had gone unchallenged. That he was present in the Court in the morning and had to, leave the Court finding that there was no probability of the case being taken within an hour or so, and then are he went to attend his other professional work. That when he returned back he came to know that the above witnesses were examined and there was no cross-examination. It was further contended that he moved an application for recalling the above witnesses for further cross-examination on that very day but the learned Judge was pleased to reject the same. It was further contended that if the waitresses are not recalled and he is not allowed to cross-examine the witnesses the case of the applicants will be seriously prejudiced.
4. ' Mr. S. Sarfraz Ahmed learned AA.-G. Has very frankly conceded that it is a case where the witnesses should be recalled otherwise the applicants' case is likely to be prejudiced.
5. I have considered the contentions of the learned counsel and have gone through the application and the impugned order. Section 540, Cr.P.C. Has two parts and if the case falls within the ambit of first part, then of course it is discretionary for the Court to recall any witness but if it is a case which falls under part 2 then there is no discretion left with trial Court and the Court is bound to recall and re-examine the witnesses or summon any witness for whose presence the application has been moved under section 540, Cr.P.C. The applicants are being tried under section 307, P.P.C. And offence which entails the punishment of imprisonment for life or at least 10 years and in such situation if the witnesses were not recalled for cross-examination their case is to be prejudiced as according to law if the evidence of any witness goes unchallenged in cross-examination the Court has no other alternative but to presume that it has been accepted to be true by the other side.
6. ' Under these circumstances I am of the considered view that the case of the present applicants falls within the ambit of part two of section 540, Cr.P.C. Reliance is placed on Muhammad Azam v.
7. M. Lqbal and 2 others PLD 1984 SC 95. In view of above discussion I allow this revision application, set aside the impugned order and direct that witnesses Fakir Muhammad, Abdul Qayoom and Abdul Wahid may be recalled for further cross-examination, and the applicants shall be provided an opportunity to cross-examine them. The revision application is disposed of accordingly.
8. ' However since the case is very old I would like to observe that the learned trial Judge would dispose it of expeditiously.