' Through this revision petition under section 435/439, Cr.P.C. Order dated 24-5-2003, passed by the learned Special Judge Anti-Corruption, Multan camp at Khanewal has been challenged by which the order, passed on 21-4-2003 for recalling of P.Ws.1 and 2 for cross-examination under section 540, Cr.P.C. Due to non fulfilment of condition for deposit of Rs.1,000 has been recalled.
2. The brief facts of this case are that the petitioner is facing criminal trial in case F.I.R. No.27 of 2000 dated 13-12-2000 registered under section 161, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947, at Police Station City Khanewal. The petitioner moved an application under section 540, Cr.P.C. For recalling P.Ws.1 and 2, which was allowed vide order dated 21-4-2003 subject to deposit of Rs.1,000 within one week but the petitioner could not deposit the said .Amount within the stipulated period and on 24-5-2003 the said order was recalled by the learned Special Judge Anti-Corruption. Hence, this revision petition.
3. Learned counsel for the petitioner contends that when order was passed by the learned trial Court in the' interest of justice to afford an opportunity to the petitioner to cross-examine the witnesses (P.W. 1 and P.W.2), it could not be recalled merely due to the reasons that the petitioner failed to arrange for payment of Rs.1,000 in the Court within one week. It is further contended that the petitioner being accused in a criminal case has a right to cross-examine the P.Ws. When he has already shown sufficient cause for re-summoning of both the witnesses for the purpose of cross-examination and he cannot be deprived of the said right merely for defaults in payment of fine of Rs.1,000.
4. The learned State counsel on the other hand opposes this petition. None has appeared on behalf of respondent No.2 despite telegraphic notice, hence he is proceeded ex parte.
5. I have heard the learned counsel for the parties and also perused the impugned order. The petitioner moved an application under section 540, Cr.P.C. That due to non-availability of the copies of the report under section 173, Cr.P.C., the statements of the complainant under section 154, Cr.P.C. And other witnesses under section 161, Cr.P.C. He could not cross-examine P.W.1. Similarly he could not cross examine P.W.2 as the learned counsel for the petitioner was not available in the Court on the said date. The learned Special Judge Anti-Corruption vide his order dated 21-4-2003 had accepted the application for summoning P.Ws.1 and 2 for the purpose of cross-examination by the petitioner/accused subject to deposit Rs.1,000 within one week. The petitioner could not deposit the said amount within the stipulated period and this order has been recalled on 24-5-2003.
Learned counsel has also pointed out that application was also moved by the petitioner on 19-5- 2003 alleging therein that he was the only bread winner of the family being Government Servant in BPS-7 and his children were studying in different Institutions, hence the condition for deposit of Rs.1,000 may be recalled, but even then the learned Special Judge has recalled the earlier order. I am of the view that once the Court had come to a definite conclusion that the petitioner was not afforded sufficient opportunity to cross-examine the witnesses and ordered for summoning both the witnesses (P.W.1 and P.W.2), this order could not be recalled merely on the ground that the petitioner had failed to deposit the amount of fine within the specified period. An opportunity for cross-examination should have to be afforded to the petitioner inspite of the fact he failed to deposit the said amount as the cross-examination on a witness is the right of an accused and sufficient opportunity has to be granted to him in this regard. Hence the order dated 24-5-2003 is set aside. The learned counsel for the petitioner on instructions undertakes that on the next date of hearing i.e. 21-2-2004 fine of Rs.1,000 imposed vide order dated 21-4-2003 will be deposited in the learned trial Court. The learned trial Court shall recall both the P.Ws.1 and 2 and one opportunity shall be afforded to the petitioner to cross-examine the witnesses. However, if the witnesses are present and the petitioner or his counsel fail to cross-examine them, no further opportunity shall be afforded to them in this regard as the case is already at the final stage.
6. This revision petition stands accepted in the above terms.
Revision .