Law: Pakistan Penal Code, 1860

Section: 376(2)

Law: Code of Criminal Procedure (CrPC), 1898

Section: 540,173

Law: Qanun-e-Shahadat (10 of 1984)

Section: 133

ORDER

Through this Criminal Revision Petition, the Petitioners namely Zeeshan Tahir and Muhammad Ramzan, facing trial in case F.I.R No. 358 dated 17.09.2019 under Section 376(2) of the Pakistan Penal Code, 1860 (“P.P.C.”) of Police Station Sihala, Islamabad has called in question the order dated 27.09.2024 (“Impugned Order”) passed by the learned Additional Sessions Judge Islamabad- East/Special Anti-Rape Court (“Trial Court”) vide which the application under Section 540 of the Code of Criminal Procedure, 1898 (“Cr.P.C.”) for summoning the witness i.e. Sikandar Sadiq, A.S.I. (PW-5) filed by the Respondent No. 1/Complainant’s counsel, was allowed.
2.    The chronicle of this case is that the Respondent No. 1/Complainant namely Rafaqat Ali submitted written application to the local police of P.S. Sihala wherein it is alleged that on 14.8.2019 at about 4/5 PM at Sihala Camp petitioners forcibly took Mst. Haya Ali, aged about 16 years from street to a under construction house and both the petitioners committed rape with her.
3.    The learned counsel for the Petitioners inter-alia argued that the impugned order passed by the learned Trial Court is illegal, against the law, facts, without lawful justification and not tenable in the eye of law; that the learned trial Court by allowing the application of the complainant has erred in law and has granted leave

to the prosecution to fill up the lacunas in the prosecution case; that after lapse of considerable period i.e. about 1 year and 8 months the complainant has requested for summoning of PW-5 namely Sikandar Sadiq, ASI; that according to Article
133 of the Qanun-e-Shahadat Order, 1984 (“Qanun-e-Shahadat Order”) re- examination of the witnesses shall be directed to the explanation of the matters referred to in cross examination and there is no provision to re-examine a witness and record his examination in chief again and specially when the said witness has been cross examined by the defence side, hence finally prayed for acceptance of the instant criminal revision petition.
4.    While on the other hand, contradicting the contention of the learned counsel for the petitioners, the learned ADPP for the State assisted by the Respondent No. 1/Complainant’s counsel vehemently resisted this petition on the ground that the impugned order is detailed and quite in accordance with the law; that the trial of the case is ongoing and there is no bar on the re-examination of Sikandar Sadiq,
A.S.I (PW-5). (PW-5), as Section 540, Cr.P.C. empowers the court to summon the witnesses at any stage of trial in order to reach the just decision of the case; so, it cannot be said that re-examination of PW-5 would amount to fulfill the lacuna in the prosecution case as the said prosecution witness would obviously be available to the defence for the purpose of cross examination; that it is a case of vital importance wherein the petitioners are accused of commission of rape with the minor victim; that it is in the fitness of the things to allow the prosecution to re- examine PW-5 who has conducted investigation on the first two days and as such the learned Trial Court has not committed any illegality or irregularity while passing the Impugned Order, therefore, the instant Criminal Revision Petition merits dismissal.
5.    Arguments heard, record perused.

6.    From the matrix of the instant lis following important situations require to be addressed.
“Whether re-summoning and re-examining of Sikandar Sadiq,
A.S.I. (PW-5) does or does not amount to fill up the lacuna of prosecution case.
Whether re-summoning and re-examining of Sikandar Sadiq,
A.S.I. (PW-5) is essential for meeting the ends of justice and just decision of case.”

7.    Before this court proceeds to comment on the above said propositions, it would be appropriate to have precise discussion on Article 133 of the Qanun-e- Shahadat Order and Section 540, Cr.P.C. and for convince the same are hereby reproduced:-
[Article 133 of the Qanun-e-Shahadat Order. Order of examinations.—(1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. (2) The examination and cross-examination must relate to relevant facts but the cross examination need not be confined to the facts to which the witness testified on his examination-in chief. (3) The re-examination shall be directed to the explanation of matters referred to in cross examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine that matter.