IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Revision Appln.No.S-55 of 2018
Applicants : Rahim Bux and others through
Mr.Asif Ali Abdul Razzak Soomro, Advocate
Complainant : Yar Muhammad Brohi through
Mr.Mazhar Ali Mangan, Advocate
State : Through Mr. Raja Imtiaz Ali Solangi, A.P.G
Date of hearing : 19.11.2018
Date of order : 26.11.2018
O R D E R
IRSHAD ALI SHAH, J.- The applicants by way of instant Criminal Revision application have impugned order dated 15.08.2018, passed by learned 6th Additional Sessions Judge, Larkana, whereby he has dismissed the applicants’ application u/s 540 Cr.PC for recalling and re-examination of the witnesses.
2. The facts in brief necessary for disposal of instant criminal revision application are that; the applicants are facing trial before learned trial Court in a murder case and they engaged a counsel to defend them. Subsequently, the certain witnesses appeared and were examined by the learned trial Court apparently in absence of learned defence counsel. The applicants then by way of making an application u/s 540 Cr.PC sought for recalling and re-examination of the witnesses who were examined by learned trial Court in absence of their learned defence counsel. It was dismissed by the learned trial Court by way of impugned order, the operative part whereof reads as under;
“the examination of chief of the complainant and witnesses was recorded in presence of learned State Counsel as well as learned associate junior counsel for the accused, while cross examination was reserved on request of above counsel for the accused, therefore, in these circumstances, I am of the considered view there is no need to record examination in chief of the complainant and above named witnesses again, as such the application in hand is hereby dismissed being devoid of merits”.
3. It is contended by learned counsel for the applicants that the applicants have been denied the right of fair trial by learned trial Court by examining the witnesses of the prosecution against them in absence of learned defence counsel. By contending so, he sought for reversal of the impugned order with direction to the learned trial Court to re-call and re-examine the witnesses against the applicants in presence of learned defence counsel.
4. It is contended by learned A.P.G and learned counsel for the complainant that no harm has been caused to the applicants on account of examination of prosecution witnesses against them in absence of learned defence counsel, as the same according to them are yet to be cross examined by the applicants through their learned defence counsel. By contending so, they sought for dismissal of the instant criminal revision application.
5. I have considered the above arguments and perused the record.
6. It was a murder case, same as per Paragraph 6 of Chapter VII of Federal Capital and Sindh Courts Criminal Circulars, could only be proceeded on appearance of a qualified legal practitioner engaged by the accused himself or engaged for the accused at State expenses. In the instant case, no doubt a counsel was engaged by the applicants to defend them but he on the date when the case proceeded could not appeared before learned trial Court. No doubt, the case as per impugned order proceeded in presence of associate of learned defence counsel but there could be made no denial to the fact that the proceeding of the case in presence of associate of learned defence counsel was not the requirement of the law. In that situation, the examination-in-chief of the witnesses, so recorded by learned trail Court, could hardly be said to be in accordance with requirement of law. It is settled by now that things are to be done in a manner prescribed by law, if done otherwise, would be illegal. In these circumstances, the applicants are right to contend through their learned counsel that they have been denied the right of fair trial which is guaranteed by Article 10-A of the Islamic Republic of Pakistan, 1973, which reads as under;
“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”.
7. The object before the Court is to make just disposal of the cases which are pending before it. In order to achieve such object, the recalling and re-examination of the witnesses is permitted 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.”
8. 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’.
9. In case of Purna Chandra Mondal vs. The State (1970 PCr.LJ-746), it has been observed by the Honourable Court that;
“The provisions of Legal Remembrancer’s Manual, 1960, were made in aid of Section 340 of the Code of Criminal Procedure which confers a right on every accused person brought before a criminal Court to be “defended” by a lawyer, which is not the same thing as being “represented” by a lawyer. That right evidently extends to access to the lawyer for private consultations and also affording the latter an adequate opportunity of preparing the case for the defence. A last moment appointment of an Advocate for defending a prisoner accused of capital offence, not only results in a breach of the provision of the 6th paragraph of Chapter XII of the Legal Remembrancer’s Manual, 1960 and frustrates the object behind the elaborate provisions of that chapter, such an appointment results also in a denial to the prisoner of the right conferred on him by Section 340 of the Code of Criminal Procedure, 1898.
10. For what has been discussed above, the impugned order is set aside with direction to learned trial Court to re-recall and re-examine the prosecution witnesses against the applicants, in accordance with law.
11. The instant Criminal Revision Application is disposed off accordingly.
JUDGE
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