Summary: ''Procedure for summoning individuals as court witnesses; the Court's role while exercising its powers under Section 540 of the Code of Criminal Procedure; the purpose of criminal trials and the rationale behind the incorporation of Sections 94, 244, 265-F, and 540 of the Cr.P.C, as well as Article 161 of the Qanun-e-Shahadat Ordinance (QSO) and Rule 2 of Chapter 1-E, Volume III of the Rules and Orders of the Lahore High Court.'' ----- (a) Criminal Procedure Code (V of 1898) ----Ss. 244 & 540---Magisterial trial---Scope of prosecution evidence---Mandatory nature of Section 244, Cr.P.C.---Court must record all evidence presented in support of prosecution and defence---Use of the word “shall” indicates mandatory character of provision---Trial Court obligated to admit material prosecution witness omitted from police challan, where evidence essential for fair decision---Held, Court's role in criminal trials is inquisitorial; it must actively seek truth to secure ends of justice. Cited Cases: • The Collector of Sales Tax v. Super Asia Mohammad Din and Sons 2017 SCMR 1427 • Hakam Deen v. The State PLD 2006 SC (AJ&K) 43 (b) Criminal Procedure Code (V of 1898) ----S. 540---Calling additional witness---Belated application---Effect---Court has discretion and duty to summon witness if their testimony is essential for just adjudication, irrespective of timing---Even if a witness was not cited in the challan or their statement under S. 161 was omitted, Court must allow testimony if relevant to determining truth---No application is required; Trial Court may act suo motu---Delay or omission by investigating agency cannot preclude the Court from exercising this power. Cited Cases: • Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 • Abdul Latif Aassi v. The State 1999 MLD 1069 • The State v. Muhammad Yaqoob 2001 SCMR 308 • Chairman NAB v. Muhammad Usman PLD 2018 SC 28 • Sajid Mehmood v. The State 2022 SCMR 1882 (c) Qanun-e-Shahadat Order, 1984 ----Art. 161---Power of Court---Inquisitorial nature of trial---Court empowered to question any party or witness at any time to discover relevant facts---Objective is to ascertain truth and not merely decide based on prosecution-defence contest---Court must ensure justice is not compromised due to omission or error by parties. (d) Code of Criminal Procedure (V of 1898) ----S. 561-A---Inherent powers---Scope---Setting aside revisional order---Trial Court permitted a prosecution eyewitness (named in FIR but omitted in challan) to testify under S. 540 Cr.P.C.---Revisional court erroneously set aside this order without properly interpreting law on additional evidence---Held, impugned revisional order was legally flawed and based on misapplication of law---Restoration of Trial Court’s order necessary to secure ends of justice. **(e) Criminal trial---Role of Court---Duty to secure justice---Inquisitorial role of magistrate in criminal proceedings requires active effort to clarify ambiguities, remove obscurities, and ensure that both innocence and guilt are determined accurately---Trial Court must remain vigilant and proactive, especially in admitting material evidence vital to fair adjudication. Cited Cases: • Khuda Bux v. The State 2024 PCr.LJ 2014 (Sindh) • Zaheer Ahmed v. Judge, Special Court PLD 2023 Lahore 528 • Ch. Muhammad Anwar v. Judge Accountability Court 2021 MLD 648 Disposition: Petition under S. 561-A, Cr.P.C. allowed; impugned revisional order set aside; Trial Court’s order restoring petitioner’s right to testify as prosecution witness reinstated; Trial Court directed to conclude trial within two months.

Summary: (a) Criminal Procedure Code (V of 1898): —S. 244(3)—Diet money for prosecution witnesses—Accused’s liability to pay—Scope. The trial court directed the accused to deposit Rs.10,000/- as diet money for prosecution witnesses under S. 244(3), Cr.P.C. The High Court held that this order was legally flawed, as S. 244(3) explicitly exempts an accused from paying witness expenses if charged with an offence punishable by imprisonment exceeding six months. Imposing such an unlawful financial burden constituted a procedural irregularity, which restricted the accused’s right to a fair trial. The order was declared illegal and set aside. (b) Criminal Procedure Code (V of 1898) & Law of Evidence: —Right to cross-examination—Fundamental aspect of fair trial—Scope under Art. 10-A of the Constitution & Art. 133 of Qanun-e-Shahadat Order, 1984. The accused was denied the right to cross-examine prosecution witnesses due to his repeated failure to produce counsel. The High Court reaffirmed that cross-examination is a fundamental procedural right, enshrined under Art. 10-A of the Constitution and Art. 133 of the Qanun-e-Shahadat Order, 1984. Courts must ensure that an accused is not deprived of this right, even if delays occur. If the accused fails to engage counsel, the trial court must appoint a state defense counsel before proceeding. Denying cross-examination without appointing counsel results in a miscarriage of justice. (c) Criminal Trial—Trial court’s duty: —Failure of accused to engage counsel—Obligation to appoint state defense counsel—Effect. Where an accused fails to arrange legal representation, the trial court must grant a final opportunity to do so or appoint a defense counsel at state expense. In Abdul Ghafoor v. State (2011 SCMR 23) and Ghulam Rasool Shah v. State (2011 SCMR 735), the Supreme Court emphasized that requiring an accused to proceed without legal representation violates the principles of fair trial. The Special Judge’s failure to appoint a defense counsel in the present case was a serious procedural defect warranting reversal of the order. (d) International Human Rights Law: —Right to confront witnesses—Legal principles under ICCPR and ECHR. The right to cross-examine witnesses is internationally recognized as a fundamental safeguard in criminal trials. Art. 14 of the International Covenant on Civil and Political Rights (ICCPR) and Art. 6 of the European Convention on Human Rights (ECHR) guarantee the accused’s right to question witnesses. Courts in various jurisdictions, including Lüdi v. Switzerland (1992) and Crawford v. Washington (2004), have held that denying cross-examination violates fair trial rights. The Pakistani courts have similarly upheld this principle under Art. 10-A of the Constitution. (e) Discretion of trial courts—Striking off cross-examination rights—Limits of judicial authority: The High Court ruled that striking off an accused’s right to cross-examine prosecution witnesses is an extreme measure that should only be exercised in exceptional circumstances. Courts must ensure procedural fairness and safeguard the accused’s right to a full defense. The impugned order was set aside as it deprived the accused of a crucial legal right. ----Disposition: Revision petition allowed. Special Judge’s order set aside. Trial court directed to grant the accused one final opportunity to engage counsel for cross-examination. If counsel is not engaged, a state defense counsel must be appointed before proceeding.

Summary: (a) Criminal Procedure Code (V of 1898): ---- Ss. 173 & 561-A – Counter FIRs – Investigation must consider both versions – No automatic exclusion of subsequent FIR – Trial Court justified in entertaining both cases Petitioners sought quashment of trial proceedings, arguing that once an FIR (No. 55 of 2003) resulted in a report under S. 173, Cr.P.C., it was unlawful for the prosecution to file another challan based on FIR No. 56 of 2003. Held, where counter cases arise from the same incident, each party presents its own version, blaming the other as the aggressor. Police must investigate both cases independently, and if both disclose cognizable offences, the prosecution must file separate reports under S. 173, Cr.P.C.. A subsequent report does not become redundant merely because an earlier one exists; instead, the Trial Court is required to consider both versions before reaching a conclusion. If, upon investigation, one version is found to be false, proceedings under S. 182, P.P.C. for false reporting can be initiated. The trial of both cases simultaneously is legally justified. ----Cited Cases: PLD 1963 AJ&K 33 (The State v. Muhammad Yaqoob) PLD 1987 SC (AJ&K) 65 (Ibrar Hussain Shah v. The State) (b) Criminal Procedure Code (V of 1898): ---- Ss. 242, 243 & 244 – Framing of charge – Consideration of all prosecution material – Charge-sheet not confined to FIR and police report Petitioners objected that the Trial Court framed charges incorporating facts not found in the FIR or report under S. 173, Cr.P.C., particularly allegations that they were called to the scene by another individual and that the dispute related to a pathway. Held, while an FIR and police report are primary documents, the Trial Court is required under S. 265-D, Cr.P.C., to consider all prosecution evidence, including witness statements under S. 161, Cr.P.C., site plans, and recovery memos when framing charges. Since statements of some witnesses supported the facts included in the charge-sheet, the charge was lawfully framed. Mere incorporation of evidentiary details in a charge does not prejudice the accused, as they still retain the right to cross-examine prosecution witnesses and present a defense. (c) Criminal Procedure Code (V of 1898): ---- Defective charge – Impact on trial – Conviction cannot be sustained on defective framing of charge, but charge alone does not vitiate trial Petitioners relied on PLD 1963 AJ&K 33 and PLD 1987 SC (AJ&K) 65, arguing that the charge was defective as it included facts not directly supported by the FIR. Held, these precedents were not applicable, as the petitioners had not been convicted but merely charged. A charge under S. 242, Cr.P.C., serves to inform the accused of allegations, enabling them to prepare a defense. Any defect in the charge does not vitiate the trial unless it results in wrongful conviction or prejudices the accused’s defense. Since the petitioners had denied the charges, the burden shifted to the prosecution to prove them, and the accused retained full rights to challenge the evidence. ----Disposition: Petition dismissed; trial proceedings to continue.