MIAN NAZIR AKHTAR, J.--The petitioners have filed this Crl. Revision to challenge the order dated 18.5.1991 passed by the learned Addl: Sessions Judge, Rawalpindi refusing to recall Zulfiqar Ali complainant under the provisions of section 540 of the Cr.P.C.
2. The petitioners are facing trial on a charge u/s 302/34 of the P.P.C in the court of the learned Addl:Sessions Judge, Rawalpindi who is recording the prosecution evidence. Zulfiqar complainant was examined by the trial Court but at that time the defence counsel in advertently omitted to confront him with his supplementary statement recorded by the investigation officer on 25.12.1988.
The petitioner made an application for summoning the complainant but the game was dismissed by the trial court vide the order dated 18.5.1991.
3. The petitioners learned counsel urged that the supplementary statement formed part of the record and its copy was supplied to the petitioner, hence no fresh record was required to be summoned. If the complainant is recalled he can be confronted with his previous statement and cross examined in respect of the contents of the supplementary statement. In support of his contention he placed reliance on the following judgments:-
1. Riaz and others vs. The State {1991 P.Cr.LJ, 877).
2. Ghulam Rasool alias Rasula vs. The state. (1987 P.Cr.L.J 455), and
3. Rashid Ahmad vs. The State (P.L.D 1971 S.C. 709).
The learned State counsel opposed the petition on the ground that the defence counsel ought to have confronted the complainant with his previous statement at the time when he was examined in the trial court.
4. There is considerable force in the arguments of the petitioners' learned counsel. The court has ample powers u/s 540 of the Cr.P.C to recall and re-examine any person already examined at any stage of the trial. Moreover it is obligatory to recall and re-examine a witness if his evidence appears to be essential to the just decision of the case. On the facts of the present case reexamination of the complainant for purpose of confronting him with his previous statement (the supplementary statement) appears to be essential to a proper and just decision of the case. In the case of Riaz and others the defence counsel had in-advertently failed to confront Mst. Meraj Bibi P.W with her affidavit. However, the trial court dismissed the application. For resummoning her. The said order was set aside by this court on revisions petition filed by the accused persons. It was held as under:- "Under Section 540 Cr.P.C the courts have vast powers to order for re-summoning of a witness to secure the ends of justice. If a witness has made a statement earlier which can throw some light and enable the court in arriving at a just decision order u/s 540 Cr.P.C can be made".
No doubt in the said case the application for re-summoning Mst. Meraj Bibi was filed promptty on the same day when her evidence was recorded and in the present case it was filed with some delay. However, the delay per se is no ground to reject an application u/s 540 of the Cr.P.C because such an application can be filed at any stage of the trial. In Ghulam Rasool's case it was held that a supplementary statement, in essence and substance is one u/s 161 of the Cr.P.C and the accused is entitled to confront a witness with such a statement. In Rashid Ahmad's case the Hon'ble Supreme Court held that u/s 540 of the Cr.P.C a court is competent to take additional evidence even after both sides have closed their evidence. Hence, respectfully following the views expressed in the above quoted precedents, I allow this revision and set aside the impugned order dated 48.5.1991 passed by the trial court. The prayer made in the petitioner's application for recalling and re examining Zulfiqar complainant for confronting him with his supplementary statement is allowed.
In case the witness disown his supplementary statement the defence shall be allowed an opportunity to cross- examine him.