SHAH JAHAN vs RAHEEM SHAH S — 2022 SCMR 352 SUPREME-COURT

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SHAH JAHAN VS RAHEEM SHAH S. 540---Summoning of witnesses---Scope---During the pendency of the trial, an application under S. 540, Cr.P.C. was filed to summon witness 'R' (father of the deceased), and witness 'S' (one of the eye-witnesses of the occurrence) and re-examination of witnesses 'Z' and 'U' as they turned hostile during trial---Trial Court allowed the application to the extent of summoning of 'R' and S', whereas the application to the extent of re-summoning and re-examining of 'Z' and 'U' was dismissed as their examination-in-chief and cross-examination had already been completed, thus, there was no occasion for re-calling them for re- examination---High Court allowed the revision petition against the order of the Trial Court---Held, that crime report was registered at the instance of 'Z', and 'S' was one of the eye-witnesses, whereas 'R', stood nowhere in the crime report as a witness---Filing of the application under S. 540, Cr.P.C. after the lapse of about 14 months wherein a new witness had been introduced to substantiate the accusations levelled in the crime report did not make sense as considerable time has already elapsed and it would certainly imprint that the said application had been filed after due deliberation and consultation---No doubt the introduction of new witness could not be denied stricto sensu but certainly the scheme of law would be bypassed if at present stage the statement of 'R' was permitted to be recorded during the proceedings before the Trial Court although it was well within the knowledge of the 'R' about the murder of his son and he never opted to appear as a witness and in such regard his statement under S. 161, Cr.P.C. was not recorded by the Investigating Officer---Nowhere was it mentioned that 'R' ever appeared before the Investigation Officer to substantiate the accusation leveled against the accused persons---As far as the case of 'S' was concerned, he was one of the eye-witnesses of the crime report and as such his statement, if it had not been given up earlier by the prosecution and the prosecution's case was still not closed, the same could be re-agitated and adduced to strengthen the prosecution version on the basis of contents of the crime report, therefore, he could be produced and recorded by the Trial Court as per dictates of law---Petition for leave to appeal was disposed of with the consequence that order of the Trial Court to the extent of declining re-summoning and re-examination of 'Z' and 'U' was upheld; the finding of Trial Court to summon 'R', the father of deceased, was also set aside, however, it was directed that 'S' could be summoned to substantiate the prosecution version, if so desired.

SHAH JAHAN vs RAHEEM SHAH S — 2022 SCMR 352 SUPREME-COURT

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