Appointment of Counsel at State Expense

PLJ 2010 Cr.C. (Lahore) 617

Present: Ijaz Ahmad Chaudhry, J.

MUHAMMAD ADNAN--Petitioner

versus

ADDITIONAL SESSIONS JUDGE, GUJRANWALA and others--Respondents

Crl. Revision No. 521 of 2009, heard on 8.12.2009.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 540, 435 & 439--Revision--Application for re-examination of PWs--Ground--Engaged a private counsel, which did not seem to be a good ground for re-examination of the witnesses, who have already undergone the lengthy test of the cross-examination and respondent has failed to show any reason that how he has been prejudiced in his defence--Held: Provisions of Section 540 Cr.P.C. cannot be exercised just for filling up the lacunas--To provide opportunity for engaging counsel is the right of the accused but the accused cannot be allowed to misuse the said concession and if he fail to engage the counsel, the trial cannot be lingered on and the Courts are competent to decide the matter after opportunity the counsel at state expense--Witnesses cannot be burdened to appear again and again in the Court for re-examination without any reason, who are already reluctant to become witnesses due to fear of the accused--Revision allowed--Impugned order set aside.     [P. 620] A

Mr. Muhammad Irfan Nasir Cheema, Advocate for Petitioner.

Mr. Muhammad Azhar, Advocate for Respondent No. 2.

Ch. Amjad Hussain, DPG for State.

Date of hearing: 8.12.2009.

Judgment

This revision petition under Sections 435 & 439 Cr.P.C., has been filed by Muhammad Adnan petitioner against the order dated 10.06.2009 passed by a learned Additional Sessions Judge, Wazirabad, District Gujranwala whereby he accepted an application filed by Respondent No. 2 under Section 540, Cr.P.C. for recalling the witnesses already recorded by the learned trial Court.

2.  Brief facts of the case are that the petitioner is complainant of case FIR No. 216 dated 4.5.2006, registered under Sections 302/148/ 149/109/452 PPC at Police StationGhakhar Mandi District Gujranwala. The trial of the said case was pending adjudication in the Court of learned Additional Sessions Judge, Wazirabad against Respondent No. 2 and his real father Muhammad Nawaz. After framing of charge, the learned trial Court summoned the evidence, the co-accused of Respondent No. 2 engaged his counsel but Respondent No. 2 failed to engage his counsel whereupon the learned trial Court appointed the counsel for Respondent No. 2 at state expenses. The statements of six PW-s were recorded by the learned trial Court and PW-1 to PW-4 were duly cross-examined by the counsel appointed at the state expenses on behalf of Respondent No. 2, whereas, cross-examination on PW-5 & PW-6 was kept reserved. At this stage, Respondent No. 2 engaged his private counsel and on very first date the Respondent No. 2 filed an application under Section 540, Cr.P.C. for re-summoning of PW-1 to PW-6 for cross-examination, which has been dismissed to the extent of PW-3 and PW-4 while the same has been accepted to the extent of PW-1 and PW-2 for re-summoning of both the PW-s for cross-examination on behalf of Respondent No. 2, vide order dated 10.6.2009, which has been challenged through this revision petition.

3.  The learned counsel for the petitioner contends that since the witnesses have already been examined, therefore, the impugned order passed by the learned Additional Sessions Judge for recalling the said witnesses is unwarranted by law; that the witnesses who have already been examined and cross-examined should not be allowed to be re-examined merely on the ground that the accused has engaged new counsel, but the learned trial Court without going into the merits of the case has re-called the PW-s for re-examination in an illegal and unlawful manner, which would amount to fill up the lacunas, and that there being no good cause for re-examination of the witnesses the impugned order is liable to be set aside as if such a practice is allowed, there will be no end of the criminal cases and the will be over burdened.

4.  On the other hand, learned counsel for Respondent No. 2 contends that originally in the FIR Zafar Iqbal and five accused etc were named with specific roles, but after seven months the complainant having entered into compromise with them has introduced Respondent No. 2 and his father as accused; that there were strained relations between the father and Respondent No. 2 as father of Respondent No. 2 had sold the land to complainant party as the deceased was real brother of Muhammad Nawaz co-accused and subsequently Respondent No. 2 and his father have been introduced to avenge the litigation started due to the sale of the land and due to the intervention of Respondent No. 2; that Respondent No. 2 has no sources to engage the counsel and father of Respondent No. 2 who is his co-accused is not interested in the defence of Respondent No. 2 due to the strained relations; that challan was submitted in the Court on 10.2.2008 while the accused were summoned on 2.12.2008, when the copies were supplied and state counsel was engaged to appear on behalf of Respondent No. 2 and subsequently statements of the witnesses have been recorded and then Respondent No. 2 became in a position to engage the counsel and now he has engaged counsel and in the interest of justice, Respondent No. 2 may be allowed to cross-examine the witnesses. Relies upon NLR 2008 Criminal 14, PLJ 2006 Lahore 113 and PLD 1991 S.C. 430.

5.  I have heard the learned counsel for the parties and also gone through the impugned order passed by the learned Additional Sessions Judge, with due care and caution. The instant case was registered on 4.5.2006 and then after framing of the charge PW-1 and PW-2, the alleged eye-witnesses were examined on 5.1.2009, who were duly cross-examined by the learned counsel appointed on behalf of Muhammad Imran Respondent No. 2 at state expense. Now on 20.05.2009 after about five months of their examination, Respondent No. 2 moved an application for re-examination of the PW-S under Section 540 Cr.P.C. on the ground that he has engaged a private counsel, which does not seem to be a good ground for re-examination of the witnesses, who have already undergone the lengthy test of the cross-examination and Respondent No. 2 has failed to show any reason that how he has been prejudiced in his defence. The engagement of another counsel at the later stage is not a ground for affording him opportunity as well for cross-examination on the witnesses, who have already been examined as it will start an unending litigation resulting into over burdening the Courts, which are already crowded with litigation and it is settled law that the provisions of Section 540 Cr.P.C. can not be exercised just for filling up the lacunas. To provide opportunity for engaging counsel is the right of the accused, but the accused cannot be allowed to misuse the said concession and if he fails to engage the counsel, the trial cannot be lingered on and the Courts are competent to decide the matter after opportunity the counsel at state expense. The impugned order has been passed on the flimsy ground without disclosing that how the re-examination of the eye-witnesses (PWs. 1 & 2) is necessary to reach at the just conclusion of the trial. The witnesses can not be burdened to appear again and again in the Court for examination without any reason, who are already reluctant to become witnesses due to fear of the accused.

6.  For the fore-going discussion, this criminal revision is allowed, the impugned order is set aside and the learned trial Court is directed to continue with the trial from the present stage, which should be concluded at least within two months after the receipt of copy of this order as it has already become an old matter.

(A.S.)   Revision allowed.