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Petition for Special Leave to Appeal No. 114 of 1969, decided on 2nd May 1969.
(On appeal from the order of the High Court of West Pakistan, Lahore, dated the 29th April 1969, in Malik Asad Khan v. The State).
S. 540‑Power to summon and examine supplementary witnesses‑After close of commitment proceedings whether trial Court alone competent to summon and examine supplementary witnesses [Quaere].
Manzoor Qadir, Senior Advocate Supreme Court (Mahmood Akhtar Raja, Advocate Supreme Court with him) instructed by M. B. Khizar Tamimi, Senior Attorney for Petitioner.
Nemo for the State.
Date of hearing : 2nd May 1969.
The petitioner who is accused of the offence of the murder of his own father is on a trial for that charge by a learned Single Judge of the High Court of West Pakistan at Lahore, the case having been withdrawn from the Court of Sessions, Mianwali, to be tried in the original criminal' jurisdiction of the High Court.
It seems that at the hearing of the case on the 29th of April 1969, the prosecution filed a supplementary list of prosecution witnesses on which the learned Single Judge ordered that they be summoned. Aggrieved by this order the petitioner has moved the present petition for leave to appeal on the ground that the examination of the additional witnesses by the prosecution, as now proposed, without a pre‑trial opportunity to the accused to ,,low what they are to depose against him as contemplated by ;action 210 of the Criminal Procedure Code, is wholly unwarranted in law.
Mr. Manzur Qadir, the learned counsel for the petitioner, has produced an uncertified copy of a subsequent order made by the learned Single Judge wherein he has made it clear that the additional witnesses have merely been summoned for the present and that the question of their examination by the Court has yet to be decided.
This renders the present petition as premature. The issue of the examination of the witnesses has not as yet been decided by the High Court and the petitioner can still oppose the attempt on the part of the prosecution to examine the additional witnesses on all the legal objections available to him, including the one which was urged before us by Mr. Manzur Qadir that after the close of the commitment proceedings it is the trial Court alone and not the prosecution that can, acting under section 540 of the Criminal Procedure Code, summon and examine any person as a witness at any stage of the trial, whose evidence appears to it to be essential to the just decision of the case.
Realizing that the petition is premature, Mr. Manzur Qadir has asked for its with drawal. It is, therefore, dismissed as such.
Petition dismissed.
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