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