Waseem Vs Aqib etc

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

Cr.R. No. 78-P/2026

Waseem............................................Petitioner Vs.

Aqib and others................................Respondents Present: Mr. Shabbir Hussain Gigyani, Advocate for the petitioner.

Nemo for the respondents being in motion.

Date of hearing: 21.04.2026.

JUDGMENT

MUHAMMAD IJAZ KHAN, J.- Through this revision petition, petitioner has challenged the order and judgment of the learned Trial Court dated 13.04.2026, whereby, the application filed by the present petitioner/complainant under section 540 Cr.PC for re- examination of the P.W-15, namely Shaheen Shah has been dismissed.

2.Arguments heard and record perused.

3.It is the case of the petitioner, who is the complainant of the instant FIR that though the Investigation Officer (I.O) of this case namely Shaheen Shah has appeared in the witness box as P.W-15 and he has also been subjected to cross-examination,

(SB)Hon’ble Mr. Justice Muhammad Ijaz Khan, J.

however, in his cross-examination, there are some uncertainties, which require clarification and as such, for clarification of those uncertainties, the said Investigation Officer (I.O) needs to be re-examined. He further submits that since on the date of cross- examination of the said P.W-15, the learned counsel representing the complainant was not in attendance, therefore, his absence has also caused serious prejudice to the case of petitioner/complainant, however, such understanding of the learned counsel for the petitioner is totally misconceived and lacks any legal wisdom, as when once the I.O appeared in the witness box and he recorded his examination-in-chief, which is in line with the case of prosecution, and he has also been cross- examined by the defence counsel and when he has left the witness box, then at this belated stage, he could not be re-examined for the clarification of uncertainties allegedly arising in the cross-examination of the said witnesses, as the I.O remained witness of the prosecution and of the complainant till the stage when he was recording his examination-in-chief and when once cross-examination starts then thereafter, it no

(SB)Hon’ble Mr. Justice Muhammad Ijaz Khan, J.

more remained the choice of prosecution or for that matter of the complainant to re-examine or to recall such witness.

4.It may be reiterated that the power to re-summon of a witness is governed and regulated by Section 540 Cr.PC, whereas, the scope of admissibility of evidence recorded in pursuance of such re-examination is regulated by Sub-clause (3) of Article 133, of The Qanoon-e-Shahadat Order, 1984. The aforesaid provisions of law being relevant are reproduced below:

540.- Power to summon material witness or examine persons present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it essential to the just decision of the case.

“133. Order of examinations. (1) ...............

(3)The re-examination shall be directed to the explanation of matters referred to in cross-examinations and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross examine that matter.”

(SB)Hon’ble Mr. Justice Muhammad Ijaz Khan, J.

The plain reading of Section 540 Cr.PC would show that it entirely speaks about the discretion of the Court to re-examine or recall a witness, who has already been examined. The word “Any Court” and “if his evidence appears to it” appearing in the said sections are of much significance and it speaks that a witness could only be re-examined and recalled if the Court considers it as essential to the just decision of the case pending before it and as such, the said section could not be pressed by a contesting party as per his choice and convenience, specially when the desirous person to recall a witness has already examined such witness. Similarly, Sub-clause (3) of Article 133 of The Qanun-e-Shahadat Order, 1984 provides that if a Court considers it essential to recall and re-examine a witness, who has already been examined then evidence of such witness shall be admissible in evidence and thus, on this score alone, the prayer of the petitioner could not be acceded to and as such the learned Trial Court has not committed any illegality by declining the prayer of the petitioner.

(SB)Hon’ble Mr. Justice Muhammad Ijaz Khan, J.

5.During the course of arguments, learned counsel for the petitioner also emphasized that since on the date of recording of evidence of P.W-15, the learned counsel representing the complainant was not in attendance, therefore, his absence has caused serious prejudice to the case of the petitioner, however, it may be clarified that it is the duty of the prosecutor appointed by the provincial government for any case/Court to prosecute an accused person in a Court and the private person may at the most instruct such prosecutor but the same could not be otherwise i.e. to say that the private counsel for the complainant would lead the prosecution and the prosecutor would be assisting him. In this regard Section 492 and 493 Chapter XXXVIII, Cr.PC being relevant is reproduced below:

“492. Power to appoint Public Prosecutors: (1) The Provincial Government, may appoint, generally, or in any case, or for; any. specified class of cases, in any local area, one or more officers to be called Public Prosecutors.

(2)[Officer-in-charge of prosecution in the district] may, in the absence of the Public Prosecutor, or where no Public Prosecutor has been appointed, appoint any other person, not being an officer of police below such rank as the Provincial Government may prescribe in this behalf to be Public Prosecutor for the purpose of any case.

(SB)Hon’ble Mr. Justice Muhammad Ijaz Khan, J.

493.Public Prosecutor may plead in all Courts in cases under his charge; Pleaders privately instructed to be under his direction. The Public Prosecutor may appear and plead without any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal, and if any private person instructs a pleader to prosecute in any Court any person in any such case, the Public Prosecutor shall conduct the prosecution and the pleader so instructed shall act therein, under his directions.”

The combine reading of the aforesaid provisions of law would show that the Provincial Government shall appoint one or more officers, who are to be called public prosecutor and further that the said public prosecutor shall appear and plead without any written authority before any Court in which any case of which he is in charge is under trial and in the discharge of the said duty, if any private person instruct a pleader to prosecute in any Court any such person, in any such case then the prosecutor shall conduct the prosecution whereas, the pleader could only instruct to the prosecutor and thus, the private counsel shall act under the discretion of the prosecutor and as such, on this score too, the plea of the petitioner that learned counsel representing the complainant was not available on the date of recording of evidence of P.W-15, is misconceived, specially, when it is an admitted fact

(SB)Hon’ble Mr. Justice Muhammad Ijaz Khan, J.

that the learned APP namely Miss. Nabila Gul was very much present and was conducting the prosecution of the accused/ respondent. It may be reiterated that it was the duty of the complainant’s counsel to ensure his availability on the date fixed and as such, when the learned APP, Miss. Nabila Gul was present on the date of recording of statement of P.W-15, then just for non- availability of the learned counsel for the complainant, the said P.W could not be recalled for his re- examination and that too for the clarification of certain uncertainties, which have allegedly occurred in the cross-examination of the said P.W-15.

6.In view of the above discussion, learned counsel for the petitioner failed to point out any illegality, or irregularity in the impugned order of the learned Trial Court therefore, the same is upheld and maintained and this revision petition being bereft of any merits is hereby dismissed in limine.

ANNOUNCED:

(Sher Hassan) Sd/-

JUDGE

(SB)Hon’ble Mr. Justice Muhammad Ijaz Khan, J.