PLJ 2013 Cr.C. (Islamabad)
509
Present:
Muhammad Anwar Khan Kasi, J.
TAMRAIZ JAVAID
MASIH--Petitioner
versus
STATE--Respondent
Crl. Rev. No. 57 of
2012, decided on 4.2.2013.
Criminal
Procedure Code, 1898 (V of 1898)--
----S. 540 &
439--Revision--Powers of Court u/S. 540, Cr.P.C.--Scope--According
to the prosecution version, the complainant had allegedly received injuries and
was medically examined, but PW Dr. in his statement failed/omitted to get
exhibit MLR of the complainant [petitioner herein] and also failed to give his
statement to this effect--This omission, in my view, cannot be considered as an
improvement in the case of prosecution while u/S--540, Cr.P.C.,
the Trial Court at any stage can summon any person as a witness or recall or
re-examine any person already examined, if his evidence appears to be essential
to the just decision of the case--Circumstances of the present case warrant
re-calling of the said witness for recording of his evidence to the extent of
MLR of the complainant & his examination--On the other hand, the
respondents shall, of course, have a right of cross-examination--If the
application for re-examination of PW was allowed, no prejudice shall be caused
to the prosecution. [Pp. 511 &
512] A, B & C
2011
SCMR 713.
Mr. Muhammad Zafar Khokhar, Advocate for
Petitioner.
Mr. Shabbir Ahmad Abbasi, learned Standing Counsel.
M/s. Mukhtar Ahmad Tarar & Syed Tanvir Suhail
Shah, Advocates for Private Respondents.
Date of hearing:
4.2.2013.
Order
The petitioner
has challenged the order dated 27.11.2012, passed by learned Sessions Judge
Islamabad, whereby petitioner-complainants application u/S. 540-Cr.P.C. for
recalling the Prosecution-Witness No. 1 (Dr. Muhammad Farrukh
Kamal) was dismissed on the ground that the
application after 3« year for recalling of the said witness lacked merits as
the lacunas in prosecution case cannot be filled.
2. It is inter
alia contended that PW-1, at the time of recording of his evidence,
failed/omitted to get exhibit the MLR regarding the injury received by the
complainant, therefore, his recalling and re-examination would be in the
interest of justice. Learned counsel relied upon case laws cited as 2002 PCr.LJ 78, 1995 PCr.LJ 730, PLJ
2009 FSC 200, 1992 PCr.LJ 729 and 2006 PCr.LJ 110 which are on the point that the Court may at any
stage of an inquiry, trial or other proceedings under the, Cr.P.C.
may summon any person as a witness or examine any person in attendance though
not summoned as a witness or recalled and re-examine any person already
examined. The purpose to exercise such power is the safe administration of
justice and its purpose is neither to advance the case of defence
nor upheld the cause of the prosecution.
3. On the other
hand, learned Standing Counsel resisted the petition by stating that re-calling
& re-examination of a witness at this stage cannot be allowed as it would
delay the trial of the case.
4. Both the
learned counsels for private respondents, in-rebuttal, strongly opposed the
petition. Their main ground was that the purpose of S. 540, Cr.P.C.
is not to fill the lacuna in the prosecution case nor any error can be rectified
only on the basis that there was an omission in the previous statement of PW.
It is next submitted that even otherwise the application after more than three
& a half year is not maintainable when the case has already concluded.
5. I have
considered the arguments advanced by both the sides and also gone through the
case laws, besides the law on the subject.
6. According to
the prosecution version, the complainant had allegedly received injuries and
was medically examined, but PW-1 [Dr. Muhammad Farrukh
Kamal] in his statement failed/omitted to get exhibit
MLR of the complainant [petitioner herein] and also failed to give his
statement to this effect. This omission, in my view, cannot be considered as an
improvement in the case of prosecution while u/S. 540, Cr.P.C., the Trial Court at
any stage can summon any person as a witness or recall or re-examine any person
already examined, if his evidence appears to be essential to the just decision
of the case.
7. The
circumstances of the present case warrant re-calling of the said witness for
recording of his evidence to the extent of MLR of the complainant & his
examination. On the other hand, the respondents shall, of course, have a right
of cross-examination.
8. While forming
the view [supra] I am fortified by the case of Ansar Mehmood vs. Abdul Khaliq and
another [2011 SCMR 713] wherein the Hon'ble Apex
Court in a case which was at the stage of final arguments, held as under:
"Powers of
Court under S. 540, Cr.P.C.--Scope--Material witness,
summoning of--Limitation--Close of prosecution evidence--Complainant filed
application to produce two doctors and report of medical board at the stage of
final arguments--Trial Court dismissed the application on the ground of its
being filed at belated stage--Order passed by Trial Court was maintained by
lower Appellate Court in exercise of revisional
jurisdiction and also by High Court exercising constitutional
jurisdiction-Validity--powers of Court u/S. 540, Cr.P.C.
were the widest in its amplitude--Court was obliged to summon evidence of
material witness, whose evidence was essential for just decision--Court while
exercising power under Section 540, Cr.P.C. had to
guard itself from exploitation and should keep guiding principle, what the ends
of justice demanded and to avoid filling gaps in negation of justice--when
Court had arrived at the conclusion that evidence was essential for just
decision, then delay in moving application was not relevant--Court itself
empowered even without application from any of the parties to summon witness
deem essential for just decision by applying its judicial mind--Medico-Legal
Certificate was issued by Medical Officer & Radiologist opined fracture on
the person of injured-Authenticity of Medico-Legal Certificate was questioned
and Medical Board was constituted at the instance of accused and Medical Board
rendered its opinion--Both the documents were authored by Medical Officers in
discharge of their functions, genuineness of which could not be
doubted--accused would have ample opportunity to discredit the evidence on the
touchstone of cross-examination--Supreme Court set-aside the orders passed by
all the Courts below and allowed the summoning of doctors."
9. In view of
above, if the application for re-examination of PW-1 is allowed, no prejudice
shall be caused to the prosecution.
10. Resultantly,
criminal revision petition is allowed and in consequence thereof, order of the
learned Trial Court dated 27-11-2012, is set-aside with direction to re-summon
& re-examine PW-1 qua the MLR of complainant by extending opportunity of
cross-examination to the respondents-accused. Since the case is at final stage,
it is expected that learned counsel for the parties would extend full
co-operation to the learned Trial-Court for completing the task. It is also
expected that the learned Trial Court shall decide the case within a period of
one month from the receipt of this order under intimation to this Court through
the Registrar.
11. Revision
Allowed. Impugned-Order set-aside.
(A.S.) Revision
allowed
