Talat Mehmood Abbasi vs Additional Sessions Judge, Rawalpindi and 3

ORDER

RAJA SHAHID MEHMOOD ABBASI, J.---Through this Criminal Revision under sections 435/439, Cr.P.C., the petitioner assails the vires of order dated 19.05.2021 passed by learned Additional Sessions Judge, Rawalpindi, whereby he dismissed the application under section 540, Cr.P.C. filed by the petitioner for placing on record reply submitted by the complainant vide letter No.17-1/2013/Enf/PT A-14 dated 27.03.2015 comprising 455-pages with Final Report of Re-investigation Committee (Ex.PL).

2. Brief facts of the case are that the petitioner is complainant of case FIR Nos.23 dated 04.11.2013 registered under section 31 of P.T.A. Act, 1996 read with sections 36 and 37 of E.T.O., 2002 and section 109, P.P.C. at Police Station FIA, Cyber Crime Circle, Rawalpindi, wherein, after completion of investigation report under section 173, Cr.P.C. was submitted and trial commenced. During trial learned trial court discharged Muhammad Abdul Qadeer Awan and Rizwan Younas, respondents Nos.3 and 4 while returning report under section 173, Cr.P.C. vide order dated 15.11.2017, which order was assailed by the complainant/petitioner before this Court by way of filing Criminal Revision No.244/2019, which was allowed vide order dated 23.11.2020 and the impugned order was set side with direction to learned trial court to proceed from the stage when the statements under section 342, Cr.P.C. of the accused/respondents Nos.3 and 4 had been recorded and to decide the case on the basis of evidence available on record. Thereafter the petitioner filed application under section 540, Cr.P.C. for producing additional evidence but the same was dismissed by learned trial court vide impugned order dated 19.05.2021. Hence this petition.

3. Learned counsel for the petitioner contends that the impugned order has been passed in hasty manner; that the learned court below has not applied its judicious mind and passed the impugned order in a mechanical way; that evidence ought to be produced was necessary for just decision of the case but learned trial court failed to appreciate this fact and dismissed the application of the petitioner . Lastly prays for setting aside the impugned order .

4. On the other hand, learned counsel appearing on behalf of accused/respondents Nos.3 and 4 have opposed this petition while arguing that most of the documents/evidence ought to be produced is already part of record; that in the earlier round of litigation, this Court has specifically directed the trial court to proceed with the trial from the stage of statements of accused under section 342, Cr.P.C.; that the application has been filed at a very belated stage in order to fill up the lacunas and to linger on the matter , hence learned trial court has rightly dismissed the application through the order under attack, which does not suf fer from any legal infirmity or irregularity .

5. Heard. The documents appended with this petition perused.

6. It divulges from record that the petitioner is complainant of above mentioned FIR wherein after investigation report under section 173, Cr.P.C. was submitted and the trial commenced. During trial Muhammad Abdul Qadeer Awan and Rizwan Younas, respondents No.3 and 4 were discharged by learned trial court while returning report under section 173, Cr.P.C. vide order dated 15.11.2017. Aggrieved by said order the petitioner filed Criminal Revision No.244/2019 before this Court, which was allowed vide order dated 23.11.2020 and the impugned order was set side with direction to learned trial court to proceed from the stage when the statements under section 342, Cr.P.C. of the accused/respondents Nos.2 and 3 had been recorded and to decide the case on the basis of evidence available on record. Every criminal case, no doubt, has its own facts and it is indeed true that where some evidence is essential for just decision of the case, it is obligatory upon the Court to allow its production and examination as provided under A section 540, Cr.P.C. but at the same time, the court cannot allow one of the parties to fill up lacunas in their evidence or extend a second chance to a party to improve their case or the quality of evidence tendered by them, because, any such step would amount to tarnish the objectivity and impartiality of the court which is its hallmark. In the instant case, the learned trial court has dismissed the application of the petitioner for production of above ment ioned documents with the observation that statements of prosecution witnesses were recorded thrice and said documents (Ex.Pk and Ex.PL) are alrea dy part of record and that when re-investigation was completed, the prosecution was required to submit supplemen tary challan with the permission of the court and in said report the prosecution was required to make reference of both the reports which were got exhibited as Ex.PK and Ex.PL and the officers B who had conducted reinvestigation proceedings were to be cited as PWs but this procedure was not followed. Lastly it was observed that this Court while remanding the case to the trial court has specifically directed to proceed from the stage when the statements under section 342, Cr.P.C. of the accused/respondents Nos.2 and 3 had been recorded and to decide the case on the basis of evidence available on record. In such position, learned trial court was justified in holding that the application for producing additional evidence was filed at very belated stage only to fill up the lacunas which is not permissible under the law .

7. For what has been discussed above, I do not find any legitimate exception to interfere in well-reasoned and speaking order passed by learned trial court. Consequently , the instant petition being devoid of any I C force is hereby dismissed.