PLD 2023 BALOCHISTAN 46
S. 540 --- Power to summon material witness or examine person present --- Re - calling for cross - examination --- Scope --- Engagement of new advocate is no ground for recalling any of the witnesses for cross - examination --- Neither the defence nor the prosecution can be allowed to fill the lacuna by re summoning the witnesses under S. 540 , Cr.P.C .-- If this practice is allowed , none of the trials would ever come to an end and such practice would amount to opening floodgates .
---- S . 540 --- Power to summon material witness or examine person present --- Scope --- Section 540 , Cr.P.C. deals with three kinds of cases and invests the Court with the power to deal with them --- First case is of a person not examined by any party and not present in Court --- However , such a person may be summoned by the Court to give evidence , in which case he will be summoned and examined by the Court --- Second case is of a person present in Court though he is not summoned as a witness --- In this case , also , the Court can examine such a person ; and the third case is of a person who has already been examined in Court , and the Court is invested with the power to recall that witness and re - examine him --- Such power , however , can be exercised by the Court if the evidence of such a person appears to the Court essential to the just decision of the case . ----
S . 540 --- Power to summon material witness or examine person present --- Scope --- Section 540 , Cr.P.C. , is divided into two parts --- First part is discretionary , while the second part is mandatory --- Powers under the second part can only be exercised when the Court is satisfied that further cross examination will be essential for the just decision of the case --- Section 540 , Cr.P.C. imposes responsibility upon the Court that these powers must be exercised with due care and caution --- Court cannot use these powers to advance the cause of the prosecution or defense , but these powers are only meant to advance the cause of justice --- Powers under S. 540 , Cr.P.C. are not meant to fill in the gaps or lacunas left by the parties to the proceedings .
S . 540 --- Qanun - e - Shahadat ( 10 of 1984 ) , Art . 133 --- Order of examinations --- Power to summon material witness or examine person present --- Scope --- Examination of a witness by the party who calls him is called examination - in - chief Examination of a witness by the adverse party is called cross examination , and the examination of the witness after the cross examination by a party is re - examining --- Article 133 of the Qanun - e - Shahadat , 1984 , prescribes the order in which the witness is to be examined --- Article 133 states the witness shall be first examined - in - chief , then if the adverse party so desires , cross - examined , and then , if the party calling him so desires , it can get him re - examined --- Said provision , therefore , lays down a procedure as to how a witness called on behalf of a party is to be dealt with at the trial and the order in which the witness has to be examined by each party ( prosecution and accused ) during the trial --- Term " already examined " as used in 540. Cr.P.C. can be easily construed to mean that a witness stands already examined when the order in which the witness is to be examined prescribed by Art . 133 of the Qanun - e Shahadat , 1984 has been followed --- Essential requirement is that the witness sought to be recalled or re - examined under the provisions of S. 540 , Cr.P.C. must have been already examined .
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