1. ' The applicant/accused was Ali Hassan and Muhammad Hashim have challenged the order, dated 4-10-1995, passed by the learned IIIrd Additional Sessions Judge, Nawabshah whereby the learned Judge has dismissed application under section 540, Cr.P.C., moved by the applicants for recalling of P.Ws. Shahabuddin, Matloob and Ibrahim for the purpose of further cross-examination.
2. ' Briefly stated the facts of the prosecution case are that on 7-3-1994 at about 1-00 p.m. Informant Shahabuddin lodged report at Police Station Bandhi District Nawabshah being F.I.R. No,4 of 1994 under section 302, P.P.C. Wherein it is stated that applicant/accused Ali Hassan fired at deceased Aslam with pistol and applicant/accused Hashim caused him hatchet blow. After usual investigation case was challened. Learned Sessions Judge made over the case to learned IlIrd Additional Sessions Judge Nawabshah for disposal according to law.
3. ' The applicants were initially represented before the Trial Court by Mr. Hadi Bux Khoso Advocate who withdrew from his power, therefore, on 30-4-1995 learned trial Judge appointed Mr. Moula Bux Channa, Advocate to conduct the case of accused treating them as pauper and case was adjourned. On 18-5-1995 learned Trial Court examined all the eye-witnesses of the case.
4. Subsequently applicants engaged Mr. Abdul Fatah Memon, Senior Advocate who moved application under section 540, Cr.P.C. For recalling the prosecution witnesses for further cross- examination which was rejected by impugned order, dated 4-10-1995.
5. ' Mr. Ali Gohar Soomro, learned counsel for the applicants has contended that Mr. Moula Bux Channa, Advocate has no experience to conduct the murder cases; that Mr. Channa has also no knowledge to cross-examine an eye-witness particularly in a contested murder case; that Mr. Channa has not put important questions to the prosecution witnesses; that no consent of applicants/accused was sought by the Trial Court while appointing Mr. Channa as their advocate on State expenses; that Mr. Channa, learned counsel for pauper accused never served any notice upon the applicants/ accused with regard to his appointment as their advocate nor he sought any instructions from them; that the applicants are illiterate persons and they were in jail when the advocate was appointed for them by the Court; that the applicants/ accused are facing trial in a case of capital punishment and recalling of the prosecution witnesses for the purpose of further cross-examination will meet the ends of justice.
6. ' Mr. Muhammad Ismail Memon, learned counsel for the State has frankly conceded to the argument for Mr. Ali Gohar Soomro, learned counsel and has raised no objection if the revision is allowed.
7. ' I have heard Mr. Ali Gohar Soomro, learned counsel for the applicants and Mr. Muhammad Ismail Memon, learned counsel for the State. I have also perused the impugned order and material placed on record.
8. ' In the case of Roshan Ali v. The State reported in 1998 PCr.LJ 1464 a learned Single Judge of this Court allowing criminal revision ordered recalling of the complainant for further cross-examination under section 540, Cr.P.C. On the ground that further examination of the complainant was necessary as important questions relating to the previous enmity, contradictions in the depositions and F.I.R. Had been left over by the advocate for pauper accused.
9. ' In yet another case Muhammad Rauf Anwar v. The State and others (1992 PCr.LJ 729) a learned Single Judge of Lahore High Court has observed that primary function of the Court is to arrive at the truth in accordance with law and technicalities should ordinarily not to be allowed to interfere with that function and on the other hand it has also to be seen that accused gets a fair trial. It is further observed that application under section 540, Cr.P.C. In an appropriate case may be filed even after the closure of prosecution evidence and may be allowed by the Court if circumstances so permit.
10. ' In the case of Abdul Qadir and another reported in PLD 1991 Karachi 353 my learned brother late Qaiser Ahmed Hamidi, J. Allowing the criminal revision observed as under: "No doubt it was discretionary on the part of learned Special Judge to have allowed the prayer of applicant but the discretion when applied to Court of justice means "sound discretion guided by law". It must not be arbitrary, vague and fanciful, but legal and regular, and in a case where the fate of accused hinges upon the evidence of such an important witness, the discretion should have been exercised in his favour. It may be added that every accused has to be given a fair and reasonable opportunity of being heard and he should not be punished or penalised due to the preoccupation of his counsel. Such observations find place in the case of Amir v The State reported in 1991 PCr.LJ 534.
11. ' The main object of cross-examination is to find out the truth. Wigmore, the great writer on the law of evidence says, Not even the abuses, the mishandlings, and the puerilities which are so often associated with cross-examination have availed to nullify its value. It may be that in more than one sense it takes the place in our system which torture occupied in the medieval system of the civilians. Nevertheless, it is beyond any doubt the greatest legal engine ever invented for the discovery of truth. However, difficult it may be for the layman, the scientist, or the foreign jurist to appreciate its wonderful power, has probably never been a moment's doubt upon this point in the mind of lawyers of experience...He may, it is true, do more than he ought to do; he may make the worse appear the better reason to perplex and dash matures counsel--may make the truth appear like falsehood. But this abuse of its power is able to be remedied by proper control. The fact of this unique and irresistible power remains and is the reason for our faith in its merits. If we omit political considerations of broader range then cross-examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law to improved methods of trial procedure."
12. The applicants/accused are admittedly illiterate and are facing trial in a case entailing capital punishment. The grievance of applicants is that the Trial Court while appointing Mr. Channa, learned Advocate did not obtain their consent nor learned counsel of pauper accused sought instructions from them with the result that important and essential questions were not put to the prosecution witnesses. Cross-examination is the only key by which truth could be elucidated and for the safe administration of justice technicalities must be avoided. The power under section 540, Cr.P.C. Is discretionary but discretion has to be exercised judicially and not arbitrary. Consequently Criminal Revision application is allowed and the impugned order, dated 4-10-1995 is set aside, with the result that the application under section 540, Cr.P.C. Filed by the applicants for recalling the witnesses stands allowed.
13. ' The learned Trial Court is directed to re-examine the witnesses for further cross-examination by Mr. Abdul Fatah Memon, Advocate for the applicants, who should be provided full opportunity of cross-examination. The case relates to year 1994, Trial Court is directed to proceed with the matter as early as and conclude the trial within the period of three months of the receipt of this order.