IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Misc. Application No. 773
of 2023
(Syed
Ali Hasan & others vs. ATC-II and another)
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE. |
Present: Mr.
Justice Naimatullah Phulpoto
Mr. Justice Amjad Ali Sahito
29.11.2023
M/s. Khawaja Muhammad Azeem and Mateeullah
Gondal advocates for applicants
Mr. Ali Haider
Saleem Addl. P.G
-.-.-.-.-.-.-.-.
Naimatullah Phulpoto, J.- Through this Misc.
Application, applicants/accused Syed Ali Hasan and Syed Sakhawat Mohsin have
called in question order dated 14.09.2023, passed by learned Judge, Anti-Terrorism
Court No.II, Karachi in Special Case No. 381/2018, whereby an application under
Section 540 Cr.P.C moved by above named accused for recalling complainant
Imtiaz Iqbal and P.Ws Nadeem Baig, Syed Ahmed Zaidi, Farookh Saleem, Dr. Qarar
Abbasi, Mr. Muhammad Farooq J.M, Dr. Azizullah and Dr. Muhammad Saleem for
further cross-examination was dismissed.
2. Notice of this application was issued
to the respondents.
3. Learned advocate for the
applicants/accused mainly contended that though above named prosecution
witnesses were cross-examined by defense counsel but material questions were
not put to them. It is further submitted that Court has power to recall or
re-examine any person if his evidence appears to be essential for just decision
of the case. Lastly, it is submitted that further cross-examination of
prosecution witnesses will not cause prejudice to the case of the complainant. In
support of his contentions, reliance is placed upon the cases reported as Muhammad
Sharif Shar vs. The State (2000 P.Cr.L.J 1882) and Syed Saleem Shah vs. The State and 5 others (PLD 2019 Lahore 435).
4. Addl. P.G argued that complainant and
some prosecution witnesses were cross-examined at length by the defense
counsel, the engagement of another counsel by accused is no ground for further
cross-examination of prosecution witnesses, no cogent reason exists to recall
the complainant and prosecution witnesses for further cross-examination and
instant application was moved before trial Court to prolong the proceedings of
the trial. It is submitted that order of the trial Court is speaking one and
requires no interference.
5. We have heard learned counsel for the
parties and have perused the impugned order.
6. Perusal of impugned order reflects that prosecution witnesses were
cross-examined at length by the counsel for accused. It appears that a fair
opportunity was provided to the advocate of accused for cross-examination of
above named prosecution witnesses. However, on engagement of new advocate,
accused filed an application under section 540, Cr.P.C. for recalling of the
above named prosecution witnesses for their further cross-examinations. The plea
taken by accused was that the previous counsel could not properly ask material
questions. In our considered view, change of counsel does not give any right to
accused to invoke provision of Section 540 Cr.P.C for recalling prosecution
witnesses for further cross-examination. Admittedly, Court has power at any
stage of trial to summon any person as witness or recall for cross-examination,
but such power could only be exercised if his evidence or cross-examination
appears to be essential for just decision of the case. The provision of section
540 Cr.P.C. is not meant to prolong the proceedings. In the case reported as Waheed
& others vs. Ghulam Hyder & another (SBLR 2015 S.C 217), Apex
Court has held as under:
“5. We may note that mere change of a counsel, will not
give any right to petitioners to invoke the provision of section 540 Cr.P.C.
for recalling of prosecution witnesses for their cross-examination. Section 540
Cr.P.C, inter alia, does provide for recalling and re-examining any person
already examined but such power is to be exercised where it appears to the
Court to be essential to the just decision of the case. Nothing was said by the
learned ASC as to why and for what reason recalling of prosecution witnesses
for their cross-examination by new counsel is essential. As noted in the
impugned order itself, the provision of section 540 Cr.P.C. is not meant for filling
up the lacuna, if any, left by the earlier counsel representing the accused. We
may add that no premium of such neglect can be extended to the accused persons
or to further delay the conclusion of the proceeding, which is pending for
almost eleven years……….”
7. We
have come to the conclusion that an
application under Section 540 Cr.P.C was moved before trial court for recalling complainant and some prosecution witnesses for further cross‑examination,
after once having availed of an opportunity to cross‑examine them, was
only filed with a view to prolong the trial. Learned advocate for the applicants
could not satisfy the Court as to why and for what reason further
cross-examination of the complainant and the prosecution witnesses is essential
for just decision of the case. Hence, impugned order does not suffer from any
infirmity or illegality. Resultantly, impugned order is maintained and instant Cr. Misc. Application
is dismissed. Trial Court is directed to decide the case expeditiously as
provided under the provisions of Anti-Terrorism Act 1997.
JUDGE
JUDGE
Wasim
ps