IN THE HIGH COURT OF SINDH AT KARACHI
Cr. Revision
Application No.126 of 2017
Yasir Yameen & another…………………………...………………..Applicants
Versus
The State & another………………..……………………………..Respondents
Date of Hearing : 02.11.2017
Mr. Muhammad Hanif Samma,
advocate for applicants
Mr. Asghar Ali Khan,
advocate for respondent/complainant
Ms. Rahat Ahsan, Addl.
Prosecutor General, Sindh.
O R
D E R
FAHIM
AHMED SIDDIQUI, J: Revisionists have
filed the instant revision under Sections 435 & 439 read with Section 561-A
of the Code of Criminal Procedure (hereinafter referred to as CrPC), wherein
they have prayed to set aside the impugned order dated 15-07-2017, passed by
the learned Additional Sessions Judge-XI, Karachi South in Sessions Case No. 847/2016.
Through the impugned order, the learned judge rejected the application under
Section 540 CrPC filed by the applicants for recalling the prosecution
witnesses for further cross-examination by the advocate of the revisionists/accused.
2.
The complainant of
the prosecution case is Sher Bahadur, movie statement was recorded by police in
the hospital, where the injured of the incident namely Iftikhar son of Muhammad
Hanif was under treatment and he was not able to record the statement. Such a
statement was later on Incorporated in FIR. The complainant describes that on
the day of the incident when he returned back from his job, his son Sohail Khan
informed him that a quarrel was taken place between his son and some other
boys. The complainant went there to negotiate regarding the incident and when
the complainant party was negotiating, the accused persons came there armed with
lethal weapons and first they abused the complainant party and then opened fire
due to which the above-mentioned injured received injuries on his right
shoulder, who was shifted to hospital for treatment.
3.
After the
investigation, a Final Report was submitted before the concerned Judicial
Magistrate, who took cognizance and subsequently the case was entrusted to the
trial Court. After framing charge, the trial initiated and some of the
prosecution witnesses were examined whereafter the revisionists/accused changed
their counsel and counsel for the applicants appearing in the instant revision
took the responsibility of defence. The newly engaged defence counsel felt that
the cross-examination by the earlier advocate was not properly done as such he
filed an application under Section 540 CrPC for recalling of the witnesses, who
have already been examined. The learned trial Court, after hearing the parties,
rejected the said application through impugned order.
4.
On notice,
respondent/complainant made appearance through his counsel and no reply/objection
to the revision application of revisionists was filed on behalf of respondent/complainant.
5.
I have heard the
learned counsel for the parties as well as learned Additional PG for the state.
6.
Learned counsel for revisionists/accused submits that learned trial court
completely failed to
appreciate that further cross-examination of the prosecution witnesses is
essential to the just decision of the case. He further submits that the
advocate of revisionists/accused who cross examined the prosecution witnesses,
did not place any material to show that revisionists/accused were not the
actual culprits of the incident. According to him, the previous advocate also
remained fail to controvert the documents produced by the prosecution
witnesses, especially the complainant. He submits that the revisionists/accused
should not be suffered for the fault of their counsel. He further argues that
learned trial judge failed to appreciate the fact that underlying principle of
justice is that parties should not suffer due to the negligence of their
advocate. He further submits that the reasoning given by learned trial court is
contrary to law as the purpose of enabling an accused to cross-examine a
prosecution witness is to try and show the falsity in the statement of said
witness. He further submits that learned trial court failed to appreciate that
the foundation of defence evidence has to be laid in the cross examination of
the witness of the prosecution. According to him, recalling the witnesses will
not cause harm to anyone and it will assist the learned trial Court to reach at
a fair decision. In the end, he prays to set aside the order of learned trial
Court and to permit the revisionists/accused to recall and further cross-examine
the prosecution witnesses. He relies upon the cases reported as the State v.
Muhammad Yaqoob and others (2001 SCMR 308); Muhammad Murad Abro v. The State (2004
SCMR 966) and Musadiq Hussain and others v. The State (2008 MLD 613).
7.
Per contra, it is
submitted by learned counsel for respondent that present revision application filed
by revisionists is nothing but a delaying tactics adopted by revisionists to
delay the trial in the case against them. He further submits that the
prosecution witnesses were thoroughly cross-examined by a learned member of
bar, who was previously engaged by them. He also submits that ample opportunity
was given to revisionists/accused for cross-examination of witnesses, which
was fully exhausted by them. He further submits that engagement of new advocate
is no ground for recalling of all or any of the witnesses. He further submits
that the application of revisionists/accused under Section 340 CrPC was rightly
dismissed by learned trial judge and there is no illegality in the order of
learned trial Court. In the end, he submits that the present revision
application has no merit and therefore, same may kindly be dismissed. He takes reliance from the cases reported as Ehsan
Bari v. The State (1989 SCMR 397); Waheed and others v. Ghulam
Haider & another (SBLR 2015 SC 217) and Dilber v. The State (PLD 1986 Karachi 385).
8.
I have considered the rival
submissions of both the parties and carefully perused the material on record.
9.
In my considered view, there is
no merit in the instant revision application. Trial court’s record shows that after
recording examination in chief, the prosecution witnesses were fully and
properly cross-examined by the previous counsel for revisionists/accused. In
fact, the witnesses were cross-examined at length. Record reveals that ample
opportunity was given to revisionists/accused for cross examination of witnesses.
On engagement of new advocate, revisionists/applicants filed an application
under Section 540 CrPC for recalling of the prosecution witnesses for their
further cross-examinations. The ground taken by revisionists in their
application was that the previous counsel could not properly cross-examine the
prosecution witnesses and their defence was not put on record. The revisionists
levelled allegations regarding the competency of their previous counsel in
cross-examination of prosecution witnesses and putting their defence on
record. Every advocate considers himself to be more meritorious and competent
than others. The engagement of a new advocate is no ground for recalling of any
of the witness for cross-examination. I consider that it will be harmful for
the entire justice system rather disastrous that once trial is conducted by a
counsel, another counsel would be allowed retrial or recalling of the witnesses
merely by alleging that the previous counsel was not competent or he did not
adopt the proper course of action during trial. Similar view is taken in a case
relied by the learned counsel for the respondent, which is reported as Waheed
and others v. Ghulam Haider & another (SBLR 2015 SC 217), wherein the
honorable Supreme Court did not allow the petitioners for further
cross-examination of the witness on the ground of change of advocate. The
learned counsel for the revisionists relied on teaming numbers of case laws but
none of them deal with the situation wherein further cross-examination was
allowed on the sole ground of change of advocate.
10.
On careful consideration of
material on record, I am of the considered view that the learned trial Court has
rightly dismissed the application filed under Section 540 CrPC for recalling of
prosecution witnesses for his further cross-examination. No illegality or
impropriety is found in the impugned order. The instant criminal revision
application lacks merit and same deserves to be dismissed. It is ordered
accordingly.
J U D G E