This revision application riled under section 185-F of the Customs Act, 1909, raises an interesting question with regard to recalling of prosecution witnesses examined in the absence of the Advocate of applicant. .
2. The applicant was prosecuted before Special Judge (Customs and Taxation), Karachi for the offence under section 150(l)(8) of the Customs Act, 1969. The applicant who was in custody was initially represented by Mr. Hassan Inamullah, Advocate, who after some time stopped attending the Court. The applicant, therefore, engaged Mr. Raja Qureshi, Advocate to represent him, who too stopped appearing in Court after the applicant was released on bail and as a result thereof none of the prosecution witnesses could be cross-examined at any stage. The applicant who is not conversant with the procedure of the Court was thus deprived of a valuable right of cross--- examination, "the greatest legal engine" ever invented for the discovery of truth. On 5-11-1990 the applicant made an application under section 540, Cr-P.C before the trial Court for recalling the prosecution witnesses which came to be dismissed on 4-2-1991 with the following order:-.
"Heard the arguments.
The case now is fixed for defence evidence and it has reached to this stage after 3-1/2 years. The record shows that full opportunity was given to accused for cross-examining the prosecution witnesses and, the accused, for the reasons best known to him, did not cross-examine them. Prayer for recalling and re-examining the P,Ws. At this stage is not justified. Accordingly, the application is rejected."
This order is the subject-matter of the present revision application.
3. 1 have heard Mr. Sohail Muzaffar, learned counsel for applicant and Mr. Niaz Ahmed Khan, learned counsel for State. The latter has supported the impugned order.
4. The prayer made by applicant was refused by learned Special Judge on the following grounds-- -- (i)That the application under section 540, Cr.P.C. Was made at a belated stage when, the case was fixed for defence evidence.
(ii)That an opportunity to cross-examine the prosecution witnesses was provided to applicant, who failed to avail of the same.
5. The language in which section 540, Cr.P.C. Is couched makes it clear that the: powers conferred by it can be exercised at any stage of the case. In A Abdul Rahman v. The State, reported in PLD PX4 BJ 10, it was observed:-- "The provisions of section 540, Cr.P.C. Give wide powers to the Court to examine any witness at any stage of the case as a Court-witness, and if the investigating officer appeared on the last date of the case and the Magistrate chose to examine him as a Court-witness, it cannot be said that he had committed any illegality."
6. This question was also considered by Muhammad Hayat Junejo, J. (as he then was) in the case of The State v. Abdul Hamid and another reported in 1970 PCr.LJ 384, who was pleased to observe:- - "A bare reading of this section, would show that it has been expressed in the widest possible terms and does not limit the discretion of the Court in any manner whatsoever. The discretionary power under this section can be invoked at any stage of enquiry or trial and any witness can be examined or a witness already examined can be recalled for further examination, if his evidence appeared to be essential to the just decision of the case."
7. The opportunity to cross-examine a witness contemplated by the law must be real, fair and reasonable. It is not an empty formality but a valuable right and a best method for ascertaining forensic truth. The applicant who is not a trained person in legal procedure was not expected to cross-examine the prosecution witnesses in the absence of his Advocate. It may be noted that the applicant cannot be penalised for the absence of his Advocates who had chosen to remain absent on the dates when the case proceeded against him. The applicant fears and his fears are not ill- founded that if the witnesses against him are not subjected to cross-examination, he may be straightaway convicted for putting up no defence.
8. As observed by the Supreme Court in the case of Muhammad Azarn v. Muhammad lqbal and others reported in PLD 1984 SC 95, section 540, Cr.P.C. Is divided in two parts: one where it is only discretionary for the Court to summon a Court-witness suo motu or on application, and the second part where it is mandatory for the Court to do so. The main condition to be C satisfied with regard to the second part is that the evidence to be summoned under this part should appear to the Court to be essential to the just decision of the case. This view was followed by this Court in Sajjad alias Shahzad and others v. The State reported in 1989 PCr.LJ 1872, and Malik Muhammad Anwar v.
The State reported in PLD 1991 Kar. 351.
9. The defence of the applicant is likely to be prejudiced if all the witnesses examined by the prosecution arc not recalled for the purpose of cross-examination. The application made by applicant under section 540, D Cr.P.C. Is, therefore, allowed and the trial Court is directed to recall all the prosecution witnesses for the purpose of cross-examination.
10. In the result the impugned order is set aside and the revision application is accepted.