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Criminal Appeal No.29 of 1987, decided on 21st May, 1987.

---S.540--Witness, recalling of--Application for recalling prosecution witness for further cross-examination and confronting him with signature and contents of letter purporting to have been written by such witness and produced by accused, rejected on the ground that case was complete and even defence was closed and application moved was merely to fill up lacunas in evidence--Trial Court, held, disallowed application on mere technicalities and failure to grant application under S .540, Cr. P . C . resulted in miscarriage of justice--Retrial ordered, in circumstances.--[Witness].

A bare reading of section 540, Cr.P.C. will show that there are two parts of this section. So far as the first part is concerned, it is discretionary for the Court to re-call witnesses or not, but if the case falls in the second part, then the Court has no discretion but to allow the application for re-calling the witnesses for further cross-examination or otherwise.

P L D 1984 S C 95 ref

A.Q. Halepota for Appellant.

Hayat Qureshi for the State.

Date of hearing: 21st May, 1987.

The appellant was tried under section 161, P.P.C. read with section 5(2) Act II 1947, before the learned Special Judge, Anti -Corruption (Provincial) Karachi, and was sentenced to suffer R.I. for six months, and to pay fine of Rs.3,000/- or in default to undergo R.I. for two months more.

The allegations against the appellant are that on 9-8-1983 one Mohammad Aziz Khan s/o Ghulam Hussain lodged a report inter alia alleging therein that he and his father reside together in the same house. That his father has another Plot bearing No.AK-19-A-17-S-7 situated in Bakra Pirt Mewa Shah, Karachi. They had constructed two rooms on the ground floor, and one room on the first floor over that Plot in the year, 1968, which was measuring 63-3 sq. yards. The Excise and Taxation Department by mistake had shown the area of the Plot as 1000 Sq. yards having 6 rooms on the ground floor, and two rooms on the first floor. His father was illiterate and hail got copy of P.T.I. in 1973, but he did not give details and particulars to the concerned Authority. Now they intended to lease out the plot, for which a copy of P.T.I. was required. Therefore, he visited Office of Excise and Taxation Department 'A' Division at Amin Manzil on 7-8-1983, and met with ETSI Baqar Ali with the application for correcting the area of the plot, number of rooms constructed thereon, and also to issue a fresh P . T .I . after making necessary corrections in the record. On going through his application the appellant demanded Rs.1,500/- as illegal gratification from him. He again visited him and requested to reduce the demand but he did not agree, as such he, agreed to pay Rs.1,500/- as illegal gratification, on 10-8-1983 in the morning in his office. Thereafter, he went to the Anti-Corruption P . S . Karachi and lodged the above report.

That a trap was arranged and according to the Prosecution the complainant gave Rs.1,500/- to :he appellant in presence of Mr. Shankar Lal, A.C. and First Class Magistrate and P.W.4 Mohammad Nasir. After the money was paid, signal was given to the Inspector who came' there, in the meanwhile it is alleged that the appellant had thrown the money on the ground, and the same was picked up by Inspector in presence of the Magistrate.

Formal charge was framed against the appellant to which he pleaded not guilty.

At the trial Prosecution examined P.W.1 Shankar Lal, First Class Magistrate, P.W.2 Iftikhar Ahmed Excise and Taxation Officer 'C' Division Karachi, P.W.3 Mohammad Aziz Khan, P.W.4 Mohammad Nasir and P.W.5 Altaf Hussain Inspector An ti- Corruption.

After the close of prosecution case statement of the appellant was recorded under section 342, Cr.P.C. in which he denied the allegations and stated that Magistrate Shankar Lal had approached him to issue P.T.I. in favour of Kannyal Gaba but he refused to do it. It was on this account that the Magistrate was annoyed. He further stated that Mr. Shankar Lal had again come to him for reducing the rent of apartments situated in Ramzan Patywala Building which are mostly occupied by Hindus, and he had refused to oblige him. He has further stated that Mashir Nasir had taken loan from him, and a part of which he had returned, and the remaining amount was still unpaid. He produced a letter as Ex.23 which is alleged to have been written to him by P.W. Nasir Ex.23. It will be worth while to mention here that an- application under section 540, Cr.P.C. was moved before the learned Special Judge for re-calling P.W. Nasir for further cross-examination on the point of letter Ex.23, but the same was rejected on the ground that the case was complete and even defence evidence was closed. According to the learned Judge it appeared that the learned counsel wants to fill up the lacunas in the evidence, which could not be allowed, and therefore, the application was rejected by order, dated 9-10-1986.

The appellant examined witnesses in his defence, but it is not necessary to discuss the same in view of the order which I propose to pass in this case. In view of the letter Ex. 23 produced by the accused it was necessary for the learned Judge to have provided opportunity to the appellant to further cross the witness and confront him with the signature and contents of the letter, but the application was rejected on a technical ground without realising that it was necessary to recall the witness in the interest of justice.

A bare reading of Section 540, Cr.P.C. will show that there are two parts of this section. So far the first part is concerned, it is discretionary for the Court to recall witnesses or not, but if the case falls in the second part, then the Court has no discretion but to allow the application for recalling the witnesses for further cross- examination or otherwise. In support of this contention reliance is placed on Mohammad Azam v. Mohammad lqbal and others P L D 1984 Supreme Court page 95 (Shariat Bench) in which it was held that:--

"it was not only negation of justice in general sense but also contravention of another rule that no party should suffer on account of mere technicalities. Procedural law is not enacted to trap individual parties through technicalities, and has to be interpreted always as acting in aid of justice and fairplay."

It was further observed that in case which falls under second part of section 540, Cr.P.C. there was no discretion for the Court but to allow application for recalling the witness for further cross- examination or summon him as Court witness, as the case may be.

In this view of the matter I am of the considered view that the justice required that the P.W. Nasir should have been recalled for further cross-examination, and failure to grant application under section 540, Cr. P.C. has resulted in miscarriage of justice. I, therefore, allow this appeal, set aside conviction and sentence of the appellant, and direct retrial of the case.

Since Mr. Muzaffar Ali Soomro who tried and convicted the present appellant is still working as Special Judge Anti-Corruption (Provincial), Karachi, and there is no other Special Judge Anti-Corruption (Provincial) working at Karachi, let this matter be placed before Special Judge Anti-Corruption, Hyderabad for disposal according to law.

S.G.D./B-37-K Order accordingly.

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