Law: Criminal Procedure Code (V of 1898)

Section: 340(2),342,540,544A(2)

Law: Pakistan Penal Code, 1860

Section: 148,149,302,302(b),380,457

(a) Criminal Procedure Code (V of 1898)--- ----S. 540---Summoning of witness---Scope---Court had to exercise all the enabling provisions under the law including S. 540, Cr.P.C. to discover the truth---For the purpose of said provision, court without any formal application from prosecution or accused, could summon any person as witness or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined. Pervaiz Ahmed v. Munir Ahmed and another 1998 SCMR 326; State v. Muhammad Yaqoob and others 2001 SCMR 308; Nawabzada Shah Zain Bugti and others v. The State PLD 2013 SC 160; Ansar Mehmood v. Abdul Khalique 2011 SCMR 713 and Shahbaz Masih v. The State 2007 SCMR 1631 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 302, 457, 148 & 149---Criminal Procedure Code (V of 1898), S. 540---Qatl-i-amd, lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Summoning of material witness---Scope---Prosecution case was that accused and co-accused persons un-tethered the buffalo of complainant and took away---Complainant with his son, nephew and others chased them, co-accused fired upon the complainant party, which hit the son of complainant and he succumbed to injuries---Accused persons while leaving buffalo, escaped---Record showed that Trial Court had not performed its duty as required under the law for providing opportunity of cross-examination of prosecution witness/nephew of the complainant to the defence---Evidence of said witness, in circumstances, could not be used against accused, as he was not provided the opportunity to cross-examine the said witness---Implicit language of S. 540, Cr.P.C., through which ample powers had been conferred upon the court to examine any witness at any stage of the trial where examination was essential for the just decision of the case, was over-looked---Appeal in circumstances, was partly allowed by setting aside the impugned passed by the Trial Court and case was remanded to the Trial Court for recalling witness/nephew of complainant for his…

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