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Criminal Revision Application No. 23 of 1976, decided on 18th August 1976. .

-- S. 540-Witness, recall of- Defence counsel appearing before Appellate Tribunal in some matter pending before Tribunal and entire record of case before appellate Tribunal-Tribunal, however, taking up case in afternoon on same day and recording evidence of important prosecution witnesses while defence counsel not turning up under impression that case would be taken up on some adjourned date Tribunal directed to recall such witnesses for cross examination, in interest of justice.-[Witness].

Muhammad Ali Shaikh for Applicant.

Manzoor Hussain for the State.

Date of hearing: 18th August 1976.

This revision application under section 22 (2) of Sind Crimes Control Act, 1975 is directed against an order passed by Commissioner, Karachi in exercise of his revisional powers rejecting the prayer of the applicant to recall for cross-examination under section 540, Cr. P. C. certain prosecution witnesses examined by the S. D. M. Harbour and Tribunal on 30-9-1975.

It has been argued by Mr. Muhammad Ali Shaikh that on 30-9-1975 he was appearing in an appeal fixed in the same matter before the Commis sioner and the matter was taken up by the Commissioner after 2-00 p.m. The record and proceedings of the case was before the Commissioner. The hearing of the appeal was completed by about 2-30 p.m. on that date. The matter was also originally fixed for evidence before the Tribunal on the same date. However, the learned counsel states that since ordinarily the record from the appellate Court does not reach the trial Court immediately after an appeal is heard he was under the impression that another date would be given by the S. D. M. and Tribunal for recording of evidence. That he was also not informed by the Commissioner that he was sending the R. and P. by special messenger to the S. D. M. and Tribunal for recording of evi dence that very day. That under the circumstances he could not remain present before the S. D. M. after having attended -the hearing before the Commissioner with the result that 4 of the most important Witnesses in this case were examined and their evidence was recorded without giving an effec tive opportunity to the counsel for the applicant to cross-examine them. It is true that it was the duty of the counsel to have also appeared before the Tribunal to find out if the matter had been adjourned or any date was given; but ordinarily the learned counsel could not expect that the evidence would be recorded that very afternoon after the appeal had been heard at 2-30 p. m. by the Commissioner. The witnesses whose evidence was thus recorded without allowing sufficient opportunity to the counsel to cross examine them should have been recalled for cross-examination under sec tion 540, Cr. P. C. in the interest of justice. It appears from the record that the learned S. D. M. and Tribunal who recorded the evidence has been trans ferred and he has been succeeded by Mr. Khalid Saeed who has not recorded the evidence in this case. It would, therefore, be proper under these circum stances, all the more, to summon these four witnesses, namely Imtiaz Ahmed, Ghulam Hussain, Ghulam Rasool and Khawaja. Nisar Ahmed, for cross examination.

2. The learned counsel on behalf of the State is also of the opinion that these four witnesses should be recalled for cross-examination and this may now be done in the interest of justice.

3. The revision application is, to that extent, allowed.

.

Revision allowed.

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