FALAK SHER vs THE STATE and 14 otherss
This criminal revision petition arises out of criminal proceedings pending before the trial court under sections 302/324/337-F(i)/148/149 of the Pakistan Penal Code 1860. During the trial, after the examination-in-chief of a police inspector as a prosecution witness was recorded and cross-examination was reserved, the trial court allowed an application by the complainant to give up the said witness as unnecessary. The petitioner-accused challenged this order before the Lahore High Court. The core legal question was whether a prosecution witness whose examination-in-chief has already been recorded can be given up as unnecessary, and whether such action prejudices the accused. The court dismissed the revision petition in limine, holding that giving up a witness at that stage, even if irregular, did not cause any substantial prejudice to the defence and was an irregularity curable under section 537 of the Code of Criminal Procedure 1898. The key principle laid down is that the prosecution may give up a witness, and procedural deviations of this nature that do not cause substantial prejudice to the accused do not warrant interference in revisional jurisdiction.
- Whether the prosecution can be permitted to give up a witness as unnecessary after his examination-in-chief has already been recorded?
- Does giving up a prosecution witness whose examination-in-chief is complete cause substantial prejudice to the accused?
- Is the action of giving up a prosecution witness during trial a curable irregularity under Section 537 of the Code of Criminal Procedure 1898?
- When can the High Court interfere in revisional jurisdiction with an interlocutory order regarding the examination of witnesses?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 537, Code of Criminal Procedure 1898
- Qanun-e-Shahadat Order, 1984
ORDER
' Criminal Miscellaneous No,. 41-M of 2006 ' ASIF SAEED KHAN KHOSA, J.---Instead of pressing the present miscellaneous petition the learned counsel for the petitioner has requested that the main revision petition as well as Criminal Miscellaneous No,1 of 2005 filed therewith may be taken up for hearing today. This miscellaneous petition is disposed of as having not been pressed.
2. Let arguments be addressed in the main revision petition and Criminal Miscellaneous No, 1 of 2005.
' Criminal Revision. No,1032 of 2005
3. The petitioner is one of the accused persons in and respondent No,2 is the complainant of case F.I.R. No, 76 registered at Police Station Kotli Loharan, District Sialkoton 1-5-2001 in respect of offences under sections 302/324/337-F(i)/148/149, P.P.C. Which case is presently being tried by the learned Additional Sessions Judge, Sialkot. So far statements of eight prosecution witnesses have already been recorded by the learned trial Court. On 7-9-2005 one Khalid Mahmood, Inspector had got his examination-in-chief recorded before the learned trial Court as P.W.9 and the defence had reserved its right of cross-examination of the said witness. Soon after recording of examination-in- chief of the said prosecution witness respondent No,2, the complainant, submitted an application before the learned trial Court through the learned Assistant District Attorney seeking permission to give up Khalid Mahmood, Inspector as unnecessary. On 29-11-2005 the said application "submitted by respondent No,2 was allowed by the learned trial Court and the prosecution was permitted to give up Khalid Mahmood, Inspector asunnecessary. The said order passed by the learned Additional Sessions Judge, Silakot has been assailed by the petitioner before this Court through the present revision petition.
4. It has been argued by the learned counsel for the petitioner that there is no provision either in the Code of Criminal Procedure or in the Qanun-e-Shahadat Order, 1984 whereby a prosecution witness whose examination-in-chief has already been recorded can be allowed to be given up as unnecessary at that. Stage. It has also been argued that the impugned action taken by the learned trial Court has caused serious prejudice to the petitioner's case.
5. After hearing the learned counsel for the petitioner and going through the documents appended with this petition it has been noticed by me that the examination-in-chief of Khalid Mahmood, Inspector (a copy whereof has been appended with this petition as Annexure-C) shows that during his investigation of this case he had recorded statements of some prosecution witnesses under section 161, Cr.P.C. And had then prepared and submitted an incomplete challan. The prosecution witnesses whose statements under section 161, Cr.P.C. Were recorded by Khalid Mahmood, Inspector were merely formal witnesses and in any case giving up of Khalid Mahmood, Inspector by the prosecution may prejudice the prosecution, if at all, but the same is not likely to prejudice the defence in any substantial manner, if at all. This is probably why the petitioner's co-accused have not even bothered to join the petitioner in challenging the order, dated 29-11-2005 passed by the learned trial Court.
6. Apart from what has been observed above the impugned action taken by the learned trial Court appears to be merely an irregularity, if at all, in the mode of the trial, which appears to be curable under section 537, Cr.P.C. And, at any rate, such an irregularity has not been found by me to be prejudicial to the petitioner's case in any significant or substantial manner. The petitioner's trial before the learned trial Court is already at an advanced stage. It appears that the present challenge has been thrown by the petitioner to the impugned order only to delay conclusion of his trial.
7. For what has been observed above no occasion has been found by me for interference in the matter through the present revision petition and the same is, therefore, dismissed in limine.
Criminal Miscellaneous No, 1 of 2005.
8. As the main revision petition has been dismissed by this Court in limine today, therefore, the present miscellaneous petition seeking interim relief has lost its relevance. Dismissed.