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Criminal Revision No. 569 of 1984, decided on 5th November, 1984.

---S. 540--Witness, re-summoning of--Evidence of prosecution witnesses recorded while defence counsel not engaged as yet by accused and not a single question put to such witnesses by accused--Cross-examination, held, being a powerful engine for discovery of truth, unchallenged statements of such witnesses would cause great damage to defence- Witness ordered to be re-called to enable accused to cross-examine them.

Mian Abdur Rashid for Petitioner.

Muhammad Sharif Butt for the State.

Date of hearing: 5th November, 1984.

The facts giving rise to this petition are that Muhammad Nawaz petitioner is facing trial before Special Judge (Central), Lahore for offence under section 22, Emigration Ordinance, 1979. On 5-3-1984, the trial Court recorded statements of Barkat Ali P.W.1, Abdul Rashid P.W.2, Qamar-uz-Zaman P.W.3 and Sarfaraz Ahmad P.W.4. The opportunity to cross-examine these witnesses was given to the petitioner/ accused but he did not cross-examine them. On 4-9-1984 the petitioner made application under section 540, Cr.P.C. before the trial Court for recalling the aforesaid P.Ws. for cross-examination on the ground that he could not engage counsel as he was under the impression that 5-3-1984 was not a date fixed for recording of the evidence. The trial Court rejected the application mainly on the ground of delay of 6 months in the submission of the application, hence this revision.

2. Learned counsel submits that the application of the petitioner was rejected without legal jurisdiction. The learned counsel for the State, however, supported the order of the trial Court.

3. I have considered the arguments advanced by the learned counsel for the parties with care. 1 find that on 5-3-1984 when the evidence off the four witnesses was recorded, the petitioner/ accused had not engaged' any counsel by that time; that not a single question having been put to the witnesses it may be argued by the prosecution that the statements of the P.Ws remain unchallenged and this may perhaps cause great damages to the defence and that cross-examination is a powerful engine for the discovery of the truth.

4. For what has been found above, I am of the view that for the just decision of the case it was very much necessary that the trial Court should have recalled the witnesses to enable the petitioner/accused to cross-examine them. To my mind, while refusing the prayer of the petitioner, the trial Court has not exercised its discretion judiciously. Resultantly, the impugned order is set aside and the application of the petitioner for recalling the witnesses for cross-examination is allowed.

S. G. D. Revision granted.

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