Summary: 540 CrPC, Summoning of witnesses for just decision of the case.

Summary: The petitioner faced trial in a case related to FIR which involves offenses under sections 302, 109, 34 PPC. The trial court had framed charges against the accused, including the petitioner, who pleaded not guilty and claimed trial. During the trial, the prosecution recorded statements of thirteen witnesses, including Zafar (PW-13). The prosecution filed an application under section 540 seeking re-examination of Zafar (PW-13) while the cross-examination by the accused was ongoing. The trial court allowed the application, leading the petitioner to challenge the order. The petitioner contends that the trial court's order is against facts and law, arguing that section 540 of the CrPC couldn't have been invoked before the conclusion of Zafar's cross-examination by the accused. The court reviews the procedural aspects and the relevant legal provisions, emphasizing that section 540 allows the court to recall and re-examine a witness if their evidence is deemed essential for a just decision. However, the court notes that the trial court erred in allowing the re-examination of Zafar (PW-13) before the conclusion of his cross-examination by the accused. The court sets aside the impugned order.

Summary: The application for re-summoning the witness at very belated stage only to fill in lacuna in the prosecution case cannot be allowed----The court reviewed Section 540 of the Code which grants the trial court the authority to summon, examine, recall, or re-examine any witness if their evidence is deemed essential to the just decision of the case. However, this power is constrained by Articles 132 and 133 of the Qanoon-e-Shahadat Order, 1984. Article 132 delineates the order of examination, while Article 133(3) specifies that re-examination should focus on clarifying matters raised during cross-examination. In light of legal precedents such as Tanveer Shahzad Vs. the State (2003 P Cr. L J 751), The State Vs. Aashir Nadeem (2019 YLR 768), and the judgment of the Federal Shariat Court titled Abbas and another v. The State (2003 P Cr. L J 624), the court affirmed that re-examination is permissible to elucidate points raised during cross-examination, not to rectify gaps in the prosecution's case. In this instance, the application for re-summoning the witness was submitted after the closure of evidence and the completion of statements under section 342 Cr.P.C., suggesting an attempt to rectify deficiencies in the prosecution's case. Consequently, the court found the application to be inappropriate for the purpose of re-examination under the law.Therefore, the court ruled that the impugned order allowing the re-examination of the witness was flawed, as it disregarded the legal framework governing witness testimony. As such, the court set aside the impugned order and dismissed the criminal revision petition.

Summary: (a) Criminal Procedure Code (V of 1898)-------Ss. 265-F & 540---Constitution of Pakistan, Art.199---Constitutional petition---Summoning of witness---Principle---Petitioner/accused was facing trial for causing injuriesand damage to person and property of complainant party---Trial Court allowed complainantto produce those persons as prosecution witnesses who were not included in calendar ofwitnesses---Validity---Mandatory under S.265-F(1), Cr.P.C. upon Court to take all suchevidence as was produced in support of prosecution---No restriction was imposed onprosecution to produce evidence of its choice---Court could refuse under S.265-F(2), Cr.P.C.to summon any such witness who was to be called for purpose of vexation of delay ordefeating ends of justice---Court had no choice to refuse to examine any witness produced byprosecution in view of S.265-F(1), C.P.C.---All proposed witnesses were figured as eyewitnesses in FIR but they were neither cited as witnesses in calendar of witnesses nor theirstatements were recorded under S.161, Cr.P.C.---Non-availability of statement of a witnesswho had not recorded its statement could not be considered to be a violation of provision ofS.265-C, Cr.P.C.---Law did not place any embargo on examination of a person during courseof trial, either in favour of prosecution or accused, who had not recorded his statement underS.161, Cr.P.C.---High Court declined to interfere in the orders passed by Trial Court as wellas Lower Appellate Court in exercise of revisional jurisdiction---Constitutional petition wasdismissed in circumstances.Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 ref.(b) Criminal Procedure Code (V of 1898)-------Ss. 161 & 265-F---Summoning of witness---Non-recording of statement by police duringinvestigation---Effect---Provision of S.265-F, Cr.P.C. does not provide specifically that onlythose witnesses can be examined whose statements have been recorded under S.161, Cr.P.C.or their names have been mentioned in challan in column of witnesses.(c) Criminal Procedure Code (V of 1898)-------S. 540---Summoning of witness---Essential for the just decision of the case---Determination---Procedure---Not necessary to hold a separate inquiry so as to reach a conclusion whether an item of evidence is essential for the just decision the case---Such isenough if it appears so to the Court from any material and infers from the material includingthat which is already available to the Court in any, admitted evidence or material otherwiselying on the judicial and other files before it.The State v. Muhammad Yaqoob and others 2001 SCMR 308 rel.(d) Criminal Procedure Code (V of 1898)-------S. 265-F(2)---Summoning of person not named in calendar of witnesses---Principle---Person not already cited as a witness can be produced under S.265-F (2), Cr.P.C. whenpermission is given by Court.Shah Zain Bugti and others v. The State PLD 2013 SC 160 rel.

Summary: (a) Criminal Procedure Code (V of 1898)-------Ss. 265-F & 540---Evidence for prosecution---Power to summon material witness orexamine persons present---Scope---Petitioner, a stranger to the proceedings, filed applicationunder Ss. 265-F & 540, Cr.P.C. for permission to record his statement as prosecution witnessor court witness---Validity---Subsection (2) of S.265-F, Cr.P.C. transpired that the court shallascertain from the public prosecutor the name of any person acquainted with the facts of thecase---Petitioner was neither complainant nor he had any nexus with the case; had notprovided any document or record of his statement before the investigating officer and hadkept silent for five years---Section 265-F, Cr.P.C. provided that the complainant or accusedcould approach the court for summoning/calling the person who was acquainted with thefacts of the case---Court though had ample power to record statement of any personirrespective of whether his statement under S.161, Cr.P.C. was recorded or not duringinvestigation, but that did not mean that a person could approach the court after a delay ofseveral years for permission to record his statement as prosecution or court witness---Petitioner had not explained as to why he kept mum and who prevented him to co-operatewith the investigating officer during investigation---Petitioner had a claim against theaccused for which he had to approach the court of civil jurisdiction---Constitutional petitionwas dismissed.(b) Criminal Procedure Code (V of 1898)-------S. 540---Power to summon material witness or examine persons present---Purpose---Section 540, Cr.P.C. confers wide discretion upon the court to summon a person to record hisstatement---Such discretion has to be exercised judiciously and for the ends of justice---Purpose of examination of witness must not be to fill the lacunas of the case---Paramountconsideration is doing justice between the parties.

Summary: This criminal appeal was directed against order passed by the learned Judge Special Court CNS, Lahore whereby the application filed by the appellant under section 540 Cr.P.C for summoning of Forensic Scientist/Analyst for evidence as PW/CW, was dismissed. The question arose here for consideration was whether in the proceedings under the control of CNSA the provisions of section 540 Cr.P.C would be applicable to cover the flaw or inherent defect in Chemical Examiner Reports....By moving application for summoning forensic scientist/analyst, such defects could not be asked to be filled by summoning witness. As what cannot be directly done cannot be indirectly done. We found no illegality, infirmity or irregularity in the impugned order and was accordingly dismissed.

Summary: The order had dismissed Sher Muhammad's application under Section 540 of the Criminal Procedure Code (Cr.P.C) for summoning Mst. Nazia Bibi as a prosecution witness. The petitioner had initially filed a private complaint against the accused persons after the police had canceled his cross version lodged. During the trial in the private complaint, Sher Muhammad filed an application under Section 540 Cr.P.C, stating that Mst. Nazia Bibi's name had inadvertently not been included in the list of witnesses, and her statement was essential for the just decision of the case. The trial court dismissed the application on the grounds that it was filed at a belated stage, and Mst. Nazia Bibi's name was not in the list of witnesses, nor had her cursory statement been recorded. The petitioner's counsel argued that Mst. Nazia Bibi was a crucial witness as she was the daughter mentioned in the petitioner's statement, claiming that the accused had attempted to kidnap her. The counsel cited precedents to support the contention that the trial court had plenary powers under Section 540 Cr.P.C for summoning a person as a witness if their evidence was essential to the just decision of the case. Additionally, the trial court was instructed to conclude the trial within two months from the date of the judgment.

Summary: Section 540 CrPC.Exemption of accused from appearance.

Summary: Criminal Procedure Code(V of 1898)-------S. 540---Material witness, re-summoning of---Scope---Four prosecution witnesses hadresiled from their statements recorded under S.161, Cr.P.C.---Complainant and SpecialProsecutor requested the Trial Court to declare the said witnesses hostile, but the request wasrejected---Complainant filed application for calling of said witnesses as well as otherwitnesses mentioned in the application as their statements were important and relevant forjust decision of the case, but was rejected---Validity---Record showed that the statement offour witnesses recorded under S.161, Cr.P.C. to some extent were informative in nature if thesame be recorded before the court in its true perspective---Said witnesses had resiled due tothe reasons best known to them---Neither the said witnesses had been declared hostile norany opportunity of cross-examination was afforded to the prosecution---Application underS.540, Cr.P.C. for calling of witnesses of the complainant/ petitioner was declined withoutstating any reason---Such decline, prima facie, caused prejudice to the prosecution---Petitionswere partly allowed by setting aside the impugned orders and case was remanded to the TrialCourt with the direction that application under S.540, Cr.P.C. of complainant/petitioner wasto be deemed to be pending along with the request of recalling of four hostile witnesses withthe opportunity to cross-examine them---Constitutional/revision petitions were disposed ofaccordingly circumstances.

Summary: (a) Criminal Procedure – Recall of Witnesses – Discretion of the Court – Section 540, Cr.P.C. – Judicial Principles Governing Exercise of Discretion: ---- Criminal Procedure Code (Section 540) – Discretionary Power – Filling Lacuna – Abuse of Process – Just Decision of the Case. The petitioner sought the recall of prosecution witnesses for cross-examination under Section 540 of the Criminal Procedure Code (Cr.P.C.), asserting that affidavits submitted by other impartial witnesses indicated the absence of the prosecution witnesses at the scene of the crime. The trial court rejected the application, and the High Court upheld this decision in revision, finding no illegality or abuse of discretion. ----Key Findings: --Discretion Under Section 540, Cr.P.C.: The court has discretionary powers under Section 540, Cr.P.C., to recall or summon witnesses; however, such discretion must be exercised judicially and not arbitrarily. Purpose of Recall: The provision cannot be used to fill lacunae in the case, encourage witnesses to alter their testimony, or manipulate proceedings. --Affidavits Filed After Testimony: Affidavits submitted by witnesses after their testimony had been recorded cannot serve as a valid ground for recall unless they raise issues essential for the just decision of the case. --Scope of Inquiry: If the court suspects manipulation or undue influence on witnesses, it may examine the affidavits but is not obligated to recall witnesses whose credibility can be assessed based on recorded testimony and affidavits. --Judicial Precedent: The principles set forth in Sardar Muhammad Khan v. Muhammad Afsar Khan (1991 P Cr. LJ 508) and Khalid Nawaz v. The State (1995 P Cr. LJ 1932) were followed, affirming that discretion under Section 540 is not meant to serve as a tool for delaying proceedings or reopening concluded testimonies without valid justification. ----Disposition: The revision petition was dismissed, with the court holding that both the trial court and the High Court had appropriately exercised their discretion under Section 540, Cr.P.C., and no illegality was found in their decisions.