IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Revision Appln.No.S-12 of 2018
Applicants : Abdul Karim and three others through
Mr.Saeed Ahmed Bijarani, Advocate
State : Through Mr. Raja Imtiaz Ali Solangi, A.P.G
Date of hearing : 19.10.2018
Date of order : 19.10.2018
O R D E R
IRSHAD ALI SHAH, J.- The facts in brief necessary for disposal of instant criminal revision application are that the applicants are involved in Sessions Case No.143/2010, outcome of FIR Crime No.65/2003, under section 302, 147, 148, 149 of P.S Ghouspur. It was kept in abeyance by learned trial Court with consent of the parties vide order dated 18th June, 2011. It was reopened. At trial, PW Zia Rehman was given-up by the prosecution/complainant. Subsequently, he was summoned to be examined by learned trial Court at the instance of complainant with active help of learned prosecutor, vide order dated 14.02.2018. The applicants being aggrieved of above said orders of learned trial Court have impugned the same before this Court by way of instant criminal revision application.
2. At the very outset, it is contended by learned counsel for the applicants that the applicants will be having no objection to reopening of the case but the grievance with them is only to the extent of re-summoning of PW Zia Rehman for his examination, as he according to him could not be called and examined as he was already given up by the prosecution. By contending so, he sought for setting aside of the order dated 14.02.2018, passed by learned trial Court, as the same according to him, has been passed without any lawful justification.
3. Learned A.P.G has sought for dismissal of the instant criminal revision application by contending that it is prerogative of the prosecution to prove case to its satisfaction.
4. I have considered the above arguments and perused the record.
5. Section 265-F(i) Cr.PC reads as below;
“that if the accused does not plead guilty or the Court in its discretion does not convict him on his plea, the Court shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution”.
6. The bare perusal of above provision of law authorizes the Court to take all such evidence as may be produced in its support by the prosecution. If the prosecution/complainant is intending to produce PW Zia Rehman before learned trial Court for taking his evidence in support of its case, then the prosecution/complainant could not be prevented from doing so legally under the pretext that he has already been given-up. Indeed, nothing has been brought on record by learned counsel for the applicants, which may suggest that the witness once given up by the prosecution/complainant could not be examined under any circumstances at later stage as matter of right.
7. Like anyone else, the prosecution also enjoys equal right of fair trial which is guaranteed by Article 10-A of the Constitution, which reads as follows;
“For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process”.
8. The controversy involved is also covered by Section 540 Cr.PC, which reads as follows;
“Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.”
9. The bare reading of above section would show that it gives wide powers to the Courts to examine any person as a witness at any stage of trial. It enables the Courts to impose a duty on it to summon, recall or re-examine any person as a witness who otherwise could not be brought before the Courts. The above section of law consists of two parts, one gives discretionary powers to the Courts and other imposes an obligation on it. The learned trial Court by summoning PW Zia Rehman to record his evidence obviously has discharged his obligation obviously with a view to arrive at right conclusion.
10. In case of Jamatraj Kewalfi Govani v. State of Maharashtra (AIR 1968 SC-178), while dealing with similar issue, the Honourable Court observed that;
“(10) Section 540 is intended to be wide as the repeated use of the word ‘any’ throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word ‘may’ in the first part and of the word ‘shall’ in the second firmly establishes this difference. Under the first part, which is permissive, the court may act in one of the three ways; (a) summon any person as a witness, (b) examine any person present in court although not summoned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly’.
11. In the said circumstances, the learned trial Court by summoning PW Zia Rehman for his examination by way of impugned order has committed no wrong, which may call for interference by this Court by way of instant criminal revision application, it is dismissed accordingly.
J U D G E
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