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Criminal Revision No. 1202 of 1969, decided on 4th March 1971.
Ss. 257 to 540- Witnesses for prosecution-Recall of-Record not indicating each one of accused to have been given opportunity to cross-examine prosecution witnesses-Accused's counsel being engaged elsewhere, prosecution witnesses, nut cross-examined-Magistrate refusing to resummon witnesses on ground that S. 257, Cr. P. C. does not permit resummoning of witnesses-Accused petitioner advised to apply to trial Court under S. 540, Cr. P. C. and Magistrate asked to pass proper orders keeping in view fact of absence of accused's counsel.
State v. Muhammad Jamil P L D 1965 S C 681 ref.
Arif Iqbal Husain Bhatti for Petitioner.
Mian Muhammad Akhtar for the State.
The grievance made out in this application. is that on 12th of August 1969, when .three prosecution witnesses, were examined, the counsel for the petitioner and his co-accused was busy in another case and the witnesses could not, therefore, be properly cross-examined. Some more evidence was examined on 6th of October 1969, on which date the counsel for the petitioner and his co-accused was ill in Lahore and he sent a telegram to the learned Magistrate to this effect. The learned Magistrate, however, refused to adjourn the case and the accused had to cross-examine the witnesses. An application for recalling the witnesses for cross-examination was dismissed on the ground that the witnesses had already been cross-examined.
2. The fact stands that the counsel for the petitioner and his co-accused was absent on both the occasions and there is some force in the contention of the learned counsel for the petitioner that the witnesses were not properly cross-examined. Section 257, Cr. F, C. as amended by West Pakistan Act, XVII of 1964, does not permit the recalling of a witness who has already been cross-examined. The Supreme Court suggested in the case of State v. Muhammad Jamil (PLD 1965SC681) that in similar contingencies resort may be had to section 540, Cr. P. C.
3. Each accused had a right of cross-examination. The record does not show that each one of the accused was given an opportunity for cross-examination. This right is not to be exercised in an omnibus manner. The learned Magistrate did not apply his mind to this aspect of the case. The best courses for the petitioner now is to apply to the trial Court for resummoning of the witnesses under section 540, Cr. P. C. The learned Magistrate will pass proper orders keeping in view the fact than on both the occasions the counsel for the accused was absent.
4: The petition is disposed 'of accordingly.
Order accordingly.
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