M. Fareed vs M. Amir

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Cr.R No: 10-A of 2016

JUDGMENT

Date of hearing............12.05.2016................................

Petitioner (s)................................. .........................

Respondent (s).......................................... .............

QALANDAR ALI KHAN,J:- This criminal

revision has arisen out of order of learned trial Court/Additional Sessions Judge-IV, Mansehra, dated 09.02.2016, whereby request of the accused/petitioner through his counsel for summoning PW Dr. Qazi Ejaz Ahmed and providing opportunity of cross

examination to the learned defence counsel to the extent of use of Axe by co-accused Shiraz, was

declined and application for the purpose under Section 540 Cr.PC dismissed.

2.The accused/petitioner along with other co-accused is facing trial in the Court of learned Additional Sessions Judge-IV, Mansehra, in case vide FIR No.386 dated 06.10.2012 under Sections 302/324/34 PPC P.S Saddar, Mansehra, wherein, co- accused Shiraz has been charged for Axe blows to brother of the complainant, Amir Shihzad, namely Muhammad Abid and also the role of effective firing attributed to the accused/petitioner, Muhammad Fareed, and attempt at the life of injured Zaheer to co- accused Shiraz and Waqas.

3.It is evident from the available record that trial had already commenced and statement of Dr.

Qazi Ejaz Ahmed was recorded as PW.11 on 03.12.2015; but an application under Section 540 Cr.PC was moved on behalf of the accused through their counsel for re-summoning of the PW for cross examination on few material questions for just decision of the case; which was, later, confined, in the instant criminal revision petition by accused/petitioner, Muhammad Fareed, to the extent of use of axe by co-accused Shiraz.

4.The request for re-summoning of PW.11 was declined by the learned trial Court/Additional Sessions Judge-IV, Mansehra, mainly, on the ground

that examination in chief and cross examination of PW. 11 were conducted in the presence of the learned defence counsel. In the application under Section 540 Cr.PC as well as in the instant criminal revision petition, the plea taken by the petitioner for re- summoning of PW Qazi Ejaz Ahmed is that his statement was recorded in the absence of counsel for petitioner/accused, who was busy in other murder cases fixed for evidence in the Courts of other learned Additional Sessions Judge, Mansehra, and that the learned trial Court was not adjourning the case, therefore, due to heavy work load, the counsel for petitioner/accused appeared at later stage and cross examined the witness but material question relating to axe blow was not put to the witness.

5.Arguments of Mr. Ghulam Mustafa Khan Swati, learned counsel for the accused/petitioner, Mr.

Shad Muhammad Khan, learned counsel for complainant/respondent No.1 and Mr. Muhammad Naeem Abbasi, learned Additional AG heard, and record perused.

6.The re-summing/recalling of a witness already examined is governed by Section 540 Cr.PC, which reads as follows:

“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.”

7.A bare perusal of the ibid section of law would show that while the law vests a Court with discretion to summon any person as a witness at any stage of a trial or recall or re-examine any person already examined; but makes it incumbent on the Court to summon and examine or recall and reexamine any such person if his evidence appears to be essential for the just decision of the case.

8.Since there is allegation of axe blow caused to the deceased by co-accused Shiraz in the FIR, the cross examination, on this point, of the Medical Officer i.e. Dr. Qazi Ejaz Ahmed (PW.11), who conducted P.M examination of the deceased assumes critical importance for just decision of the case (1998 SCMR 326).

9.The two judgments cited at the bar by the learned counsel for complainant/respondent No.1, in

cases reported as 2007 YLR 851 (Peshawar) and 2007 P.Cr.LJ 642 (Lahore), would not be applicable to the instant case, as both the judgments were rendered in the cases at the stage of recording of statement of the accused under Section 342 Cr.PC, obviously, after recording and closing of prosecution evidence; whereas in the instant case not only complete evidence of the prosecution is yet to be recorded and closed, but the application for re- summoning of the Medical Officer (PW.11) was also moved immediately on 07.12.2015 after recording statement of the PW on 03.12.2015. Therefore, the petitioner can also not be suspected for moving the application with the intention to cause delay in conclusion of trial.

10.Even otherwise, the right of defence and opportunity of cross examination of prosecution witness are valuable rights of an accused facing trial, which cannot be denied to him on technical grounds.

Therefore, on the acceptance of the instant criminal revision petition, the impugned order of the learned trial Court/ASJ-IV, Mansehra, dated 09.02.2016 is set aside, with direction to the learned trial Court to re- summon the Medical Officer (PW.11) and provide opportunity to the defence to cross examine the PW to

the extent of use of axe by co-accused Shiraz. A copy of this judgment/order be immediately sent to the learned trial Court for the needful.

Announced:

JUDGE