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Criminal Revision No. 953 of 1968, decided on 6th December 1959.
----Ss. 540 & 257 Recalling of witnesses-Accused, to prove his innocence, entitled to cross-examine prosecution witnesses before framing of charge--Triad Court directed to recall prosecution witnesses under .S. 540 and allow accused tea cross-examine them.
Asad-ur-Rahman for Petitioner (Absent).
Ch. Muhammad Ishaque for A.-G. for the State.
Syed Muhammad Anwar for the Complainant.
Date of hearing: 16th December 1969
This petition is directed against the order of Mr. A. S. Qureshi, Magistrate Section 30, Toba Tek Singh, dated 9th of September 196'8, whereby he refused to recall the prosecution witnesses for cross-examination at the instance of the accused and observed that the accused would be at liberty to call the witnesses for cross-examination under section 257, Cr. P. C., after a charge had been framed.
2. Some evidence had been examined in this case when the record was burnt. The police reconstructed the challan and submitted the case to the Curt again. Some witnesses were examined. The defence counsel expressed his inability to cross-examine these witnesses on the ground that the copies of the statements recorded under section 161, Cr. P. C., had not been supplied to him. The copies earlier supplied according to this petition had been placed on the record. The copies of the statements under section 161, Cr. P. C., were supplied again in due course and an application was made before the learned Magistrate to recall the witnesses who had already been examined, for cross-examination. The learned Magistrate observed that the accused would be at liberty to call the eye witnesses in defence under section 257, Cr. -P. C.
3. It should be said in fairness to both the learned counsel who appear for the complainant and the State that they concede the prayer made in this application. An accused person i entitled to show before a charge is framed that there is no case against him. This he could do only by cross-examining the witnesses. The learned counsel for the accused was unable to do so, because the copies of the statements recorded under section 161, Cr. P. C. had not been supplied to him. The appropriate provision applicable to the facts of the case, in my view, was section 54Q, Cr. P. C. which empowers the Court to, recall any witness at any stage. Section 257, Cr. P. C. would come into operation only when a charge had been framed. The accused could not be compelled in this case to wait till a charge had been framed as they had 'a right to show by cross-examining the prosecution witnesses that they were entitled to a discharge under section 253, Cr. P. C.
4. I, therefore, direct that the learned Magistrate should recall the witnesses under section 540, Cr. P. C. and permit the accused to cross-examine them. The records shall be sent back immediately and the evidence of Muhammad Ali, who is stated to be preparing to go out of the country, will be recorded at the earliest possible date.
5. This revision petition is decided accordingly.
Order accordingly.
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