Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD ASHRAF VS Respondent: THE STATEHonorable Justice Bashir A. MujahidKhawaja Mehmood Ahmad,Ch. Farooq Haider
2004 P Cr
2004 P Cr. L J 385
[Lahore]
Before Bashir A. Mujahid, J
MUHAMMAD ASHRAF‑‑‑Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Revision No.494 of 2003, decided on 23rd June, 2003
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑Ss. 540, 173 & 439‑‑‑Summoning of Court witnesses‑‑‑Revision petition‑ ‑‑Report under S.173, Cr.P.C. was submitted and two Police Officers who partly investigated the case, were cited as prosecution witnesses in calendar of witnesses in the said report‑‑‑Said witnesses were given up by prosecution, but on application of accused they were summoned to be examined as Court‑witnesses‑‑‑Order had been challenged by prosecution on ground that the Police Officers as Investigating Officers declared the accused innocent without arresting them and without associating them in 'investigation, without any legal justification‑‑‑Order of Trial Court calling said police officials as Court- witnesses by allowing application of accused, was fully in accord with the law‑‑‑If the said police officials were examined as Court‑witnesses, complainant would also have a right to cross‑examine the witnesses and his case was not to be prejudiced in any manner‑‑‑Trial Court having rightly exercised its discretion for just decision of the case, no interference in revision was called for.
Feroze Din v. Bahadur Ali 1991 CLC 2110; Painda Gul and another v. The State and another 1987 SCMR 886; Nazir Ahmad and 2 others v. The State 2001 MLD 1585; Khadim Hussain v. The State 2000 YLR 1562; Haji Rasheed Ahmad and 2 others v. The State 1998 2059; Moonda and others v. The State PLD 1958 SC (Pak.) 275; Ali and 2 others v. The State 1992 SCMR 2055; Muhammad others v. The State 1997 .Law Notes 626 and Bashir Ahmad v. 1988 MLD 2435 ref.
Khawaja Mehmood Ahmad for Petitioner.
Ch. Farooq Haider for the State
Najeeb Faisal Chaudhary, Addl. A.‑G
ORDER
The petitioner has challenged order, dated 6‑5‑2003 passed by learned Additional Sessions Judge, Gujrat whereby Mehmood Ahmad Khan, ex‑S.P. Gujrat 'and Abdul Jalil, D.S.P., Gujrat have been summoned as Court‑witnesses in case F.I.R. No.763 of 1997 dated 6‑11‑1997 under sections 302/324/109/34, P.P.C. registered at Police Station Saddar Gujrat.
The brief facts of the case for disposal of the instant revision petition are that the petitioner got the above said case registered against respondent No. l and his co‑accused for murder of Muhammad Zaman and Nazim Abbas and launching murderous assault on Shamshaa Hussain . After declaring the co‑accused of respondent No.1 as proclaimed offender, report under section 173, Cr.P.C. was submitted and Mehmood Ahmad Khan, S.P. Gujrat and Abdul Jalil, D.S.P. Gujrat who partly investigated the case, were cited as P.Ws. in calendar or witnesses in the said report but were given up by the prosecution and on application moved by respondent No.1, through impugned order they have been summoned to be examined as Court‑witnesses.
In support of the petition, learned counsel for the petitioner contends that without arresting the accused, Mehmood Ahmad Khan, the then S.P., Gujrat took over the investigation and the accused were declared innocent without associating them in the investigation and without legal justification. By making reference to the legal opinion rendered by Inspector Legal on 21‑2‑2000 it has been argued that the accused were declared innocent by the D.S.P. in faulty and illegal manner sand conducted with ulterior motive, therefore, departmental action was recommended against the said Investigating Officers; the learned trial Court has not given reason for summoning them as Court-witnesses and the impugned order is not speaking order. In support of the petition reliance has been placed on Feroze Din v. Bahadur Ali 1991 CLC 2110, Painda Gul and another v. The State and another 1987 SCMR 886, Nazir Ahmad and 2 others v‑. The State 2001 MLD 1585, Khadim Hussain v. The State 2000 YLR 1562, Haji Rasheed Ahmad and 2 others v. The State 1998 PCr.LJ 2059, Moonda and others v. The State PLD 1958 SC 275; Farman Ali and 2 others v. The State 1992 SCMR 2055 and Muhammad Shah and others v. The State 1997 Law Notes (D.I. Khan Peshawar) 626.
Conversely, the petition has been opposed by learned counsel for respondent No. l and also by learned Law Officer. Learned counsel for respondent No. l has placed reliance on D. B. judgment rendered by this Court in Criminal Revision No.684 of 2000 and Bashir Ahmad v. The State 1988 MLD 2435, in support of impugned order.
I have given due consideration to the contentions raised at the bar and also examined the case‑law referred to by learned counsel for the parties and I find that both Mehmood Ahmad Khan, S.P., Gujrat as well as Abdul Jalil, D.S.P: Gujrat were cited as P.Ws. in the report under section 173, Cr.P.C. but were given up by the prosecution. The trial Court by making reference to a judgment of Division Bench of this Court passed in Criminal Revision No.684 of 2000 has allowed the application of the accused. The judgment of Honourable Division Bench was directed applicable to the facts and circumstances of the instant case. The case‑law referred to by learned counsel for the petitioner is clearly distinguishable. The police officials if examined as Court witnesses the petitioner/ complainant will also have a right to cross‑examine the said witnesses and his case will not be prejudiced in any manner. The trial Court has rightly exercised its discretion for just decision of the case therefore, I do not find any illegality in the impugned order warranting interference in the revisional jurisdiction. The petition stands dismissed having no force.
H.B.T./M‑1992/L Revision petition dismissed.