P L D 2026 Balochistan 73

 P L D 2026 Balochistan 73

Before Gul Hassan Tareen, J

Hafiz MUHAMMAD ISMAIL ---Petitioner

Versus

The STATE and another ---Respondents

Criminal Revision No. 08 of 2026, decided on 17th March, 2026.

Criminal Procedure Code (V of 1898)---

----S.540---Qanun-e-Shahadat (10 of 1984), Art.150---Power to recall

witness---Scope---Application for recalling witness to declare him

hostile and for cross-examination by complainant---Legality---

Whether a witness, already examined and cross-examined, could be

recalled under S.540, Cr.P.C. for declaring him hostile and permitting

cross-examination by the party calling him?---Held: Eye-witness was

examined-in-chief by the Prosecutor and was duly cross-examined

by the defence---After completion of such examination, application

for recalling the witness was moved on the ground that complainant

s counsel could not reach the Court in time---Even if complainant s

counsel had been present, he would have acted under the direction

of the Prosecutor; therefore, absence of complainant s counsel did

not vitiate the proceedings---Under Art.150 of the Qanun-e-Shahadat,

1984, a party may, with permission of the Court, cross-examine its

own witness only when the witness exhibits hostility or resiles from

previous statements---Such permission is to be sought at the stage

when the witness is under examination, not after completion of

cross-examination by the adverse party---Once cross-examination by

the adverse party is concluded, the party calling the witness may

only re-examine him to explain matters arising out of cross-

examination and cannot thereafter seek to cross-examine him---

Power under S.540, Cr.P.C. is to be exercised for just decision of the

case and not to fill lacunae or to re-open concluded examination

without lawful justification---Application for recalling the witness

was rightly dismissed---Petition was dismissed, in limine.

State of Bihar v. Lalu Prasad alias Lalu Prasad Yadav AIR 2002 SC

2432 rel.

Zahid Agha for Petitioner.

Date of hearing: 16th March, 2026.

JUDGMENT

GUL HASSAN TAREEN, J.---This criminal revision petition assails an

order dated 21 February 2026 of the learned Additional Sessions Judge,

Pishin, whereby an application made by the petitioner under section

540, the Code of Criminal Procedure,1898 ( Code ), to recall Sirajuddin

(PW-7) for the purpose of declaring him hostile and to provide an

opportunity to the petitioner to cross- examine him, was dismissed.

2. Mr. Zahid Agha, the learned counsel for the petitioner submitted

that Siraj-ud-Din was the eyewitness of a murderous assault on the

victim/deceased, Bilal Ahmed. He argued that in his 161 s Code statement, Siraj-ud-Din attributed the role of assault to the respondent

and his co-accused; however, when he appeared before the Trial

Court, he exonerated them and stated that he did not witness the

incident. Thus, the learned Assistant District Public Prosecutor ( the

Prosecutor ) should ought to have requested the Trial Court to declare

him as hostile and cross-examine the said witness. He further

submitted that he was counsel for the complainant and that, when the

said witness was being examined, he (the counsel) was on his way to

the Trial Court; thus, could not reach in time. However, on same day,

he made an application to the Trial Court for recalling this witness so

that he could be declared as hostile and cross-examined; however,

vide the impugned order, the learned Trial Judge dismissed the

petitioner s application without assigning any legal reasons and

consequently committed illegality.

3. I have heard and gone through the record.

4. The complainant made an application to the Officer-in-Charge,

Levies Station Barshore for lodging an FIR against the accused named

in the application. According to the contents of the application, the

four accused assaulted Muhammad Bilal and caused him fatal injuries.

The incident was witnessed by Siraj-u-Din. The Investigation Officer

recorded the statement of Siraj-u-Din under section 161, the Code. He

appeared as Prosecution Witness 7. He was examined-in-chief by the

learned prosecutor. When the examination-in-chief of the witness was

recorded, he was cross-examined by the defense learned counsel. After

examining the witness, the trial was adjourned, after which, the

petitioner s learned counsel made an application under section 540,

the Code. Prayer clause of the application is reproduced hereunder:

It is therefore requested from this Hon ble Court may kindly recall

the PW Sirajuddin and further requested to declare him as

hostile and made dishonest improvement and provide

opportunity to the complainant to cross-examination and legal

action against him in the interest of justice .[sic]

The learned Trial Judge, vide order dated 21 February 2026,

dismissed the application.

5. The following two points require consideration in this revision

petition:

a. who is the master of the trial in criminal cases to drive the

trial on behalf of the prosecution?

b. once the examination of a witness is completed, then such

witness may be recalled to be declared hostile?

Point for determination (a):

6. The Chapter XXXVIII, the Code consists of four sections (492 to

495). Under section 492, the Provincial Government may appoint

officers to be called, Public Prosecutors . Section 493, permits the

Public Prosecutor to appear and plead before any Court in which any

case of which he has charged is under inquiry, trial or appeal, and if

any private person instructs a pleader to prosecute in any Court any

person in any such case, the Public Prosecutor shall conduct the

prosecution and the pleader so instructed shall act therein, under his

directions. Any Public Prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from the prosecution of

any person under section 494. And under section 495, any Magistrate

inquiring into or trying any case may permit the prosecution to be

conducted by any person. Regarding the decision on point (a), section

493, the Code is relevant. The relevant in the section reads as:

, and if any private person instructs a pleader to prosecute in any

Court any person in any such case, the Public Prosecutor shall

conduct the prosecution and the pleader so instructed shall act

therein, under his directions .

Section 493, authorizes the Public Prosecutor alone to conduct the

prosecution, and if the complainant engages any private counsel, the

said counsel is required to act under the directions of the Public

Prosecutor. Though, the complainant is a necessary party in cases

involving murder and hurt to body, yet, this does not make him

incharge of the prosecution. Section 265-A, the Code contains a

mandatory command that, in every trial before a Court of Session,

initiated upon a police report, the prosecution shall be conducted by

the Public Prosecutor . Thus, the Public Prosecutor is the sole authority

to prosecute cases against accused/s in the criminal cases. Any counsel

privately engaged by a complainant may assist the Public Prosecutor

who remains subordinate to him. The Public Prosecutor has the

authority to, give up any witness or request the Court to allow him to

put to his own witness such questions as might be put in cross-

examination by the adverse party. The provision of section 493 is

mandatory; consequently, a private counsel cannot be appointed a

Public Prosecutor, and he must act under the direction of the Public

Prosecutor. Therefore, the Public Prosecutor is the master of trial in

criminal cases to drive the trial and any private counsel may only

assist him and conduct the prosecution under his directions.

7. In this case, the learned prosecutor was conducting the

prosecution. When PW-7 appeared before the Court, he examined him

in chief, and the prosecutor held the sole authority to decide whether

or not to request the learned Trial Judge to allow him to cross-examine

the witness. The presence of complainant s counsel at that time was

not a relevant factor. In his application to re-call the PW-7,

complainant s counsel mentioned that he could not reach the Court

when the witness was being examined because he was on his way to

the Court. Even had he been present during the examination in chief

of the witness, he would have acted under the direction of the

prosecutor. Thus, the petitioner s learned counsel s contention that the

witness should have been examined in his presence and under his

direction, or that the witness should have been declared hostile, is

without any legal substance in view of the provisions of sections 265-A

and 493, the Code.

Point for determination (b):

8. Article 133 sub-article (1), the Qanun-e-Shahadat Order-10, 1984 (

Q.S.O ) prescribes the order of examination of a witness. 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.

The examination-in-chief and re-examination of a witness can only be

done by the party who called him, and the cross-examination (is done) by the adverse party. However, the party who called a witness may

cross-examine their own witness with the leave of the Court under

Article 150, the Q.S.O, when the Court is satisfied that the statement of

the witness exhibits an element of hostility or that he has resiled from

a material statement which he made before the investigation agency

or where the Court is satisfied that the witness is not speaking the

truth and it is necessary to cross-examine him to unearth the truth.

The act of cross-examination is always performed by the adverse

party, however, a party may cross-examine their own witness under

Article 150, the Q.S.O. After close of cross-examination, the party who

called a witness may re-examine their own witness to explain any

matter referred to in cross-examination; however, such party cannot

cross-examine its own witness subsequent to the cross-examination by

the adverse party. Thus, when a witness is examined in chief, the party

who called him may request the Court to allow him to cross-examine

their own witness under Article 150, the Q.S.O for, under this article,

the Court may permit to put any question to a witness which might be

put in cross-examination by the adverse party. In this regard, reliance

may be placed on the case law reported as State of Bihar v. Lalu Prasad

alias Lalu Prasad Yadav (AIR 2002 SC 2432). Relevant in the case law

read as:

5. Nonetheless a discretion has been vested with the Court whether

to grant the permission or not. Normally when the public

prosecutor request for permission to put cross question to a

witness called by him the Court used to grant it. Here if the

public prosecutor had sought permission at the end of the chief-

examination itself the trial Court would have no good reason for

declining the permission sought for. But the public prosecutor

did not do so at the stage. That is precisely the reason why the

trial Judge declined to exercise his discretion when the

permission was sought for after the cross-examination was over.

The witness has said only the detail in cross-examination

regarding the matter which he said in the chief-examination

itself. It would have been a different position if the witness stuck

to his version he was expected to say by the party who called the

witness, in the examination-in-chief, but he showed propensity

to favour the adverse party only in cross-examination. In such

case the party who called him has a legitimate right to put cross

questions to the witness. But if he resiled from his expected

stand even in chief-examination the permission to put cross

questions should have been sought then .

For the foregoing reasons, once the examination (examination-in-

chief and cross-examination) of a witness is completed, then such

witness cannot be recalled under section 540, the Code to be declared

him hostile.

The impugned order is well reasoned in view of afore discussion

which, therefore, calls no interference by this Court.

As a result, I dismiss this criminal revision petition in limine.

JK/23/Bal. Revision dismissed.