MUHAMMAD ASLAM Versus HAJI NAZAR MUHAMMAD

On 19-12-1990, it was directed by this Court that the learned trial Magistrate shall conclude the trial of the accused on or before 10-1-1991 vide Criminal Miscellaneous No.284/Q of 1990. On 5-1-1991, an application was moved by the complainant under section 540, Cr.P.C. for summoning Dr. Mumtaz to appear as a witness in the case. The case was adjourned to 7-1-1990. On this date, one of the accused did not appear and the case was adjourned to 9-1-1990. Again, the accused absented from the Court and as such the case was adjourned to 14-1-1990. On 14-1-1990 the application of the complainant was rejected by the learned Magistrate. Against this order the complainant went in revision which was heard and accepted by the learned Additional Sessions Judge, Bhalwal, on 30-1-1991. In consequence, the case was remanded to the learned trial Magistrate for retrial of the accused. It was specifically observed by the learned revisional Court that delay in conclusion of the trial before the target date had occurred on account of absence of the accused from the learned trial Court. The view expressed by the learned Additional Sessions Judge was that there was nothing in law under which the complainant was debarred from summoning Dr. Mumtaz as a prosecution witness.

2. Learned counsel contends that the accused in the case were acquitted on 10-2-1990 by the learned Magistrate, and as such, under section 403 of the Code of Criminal Procedure, their retrial was not possible. Learned counsel argues that it was the duty of the learned trial Magistrate to have concluded the trial before 10-1-1991 which he failed to do so. Learned counsel contends that the application for production of additional evidence is belated inasmuch as the complainant did not move any application for summoning Dr. Mumtaz for about two years for recording his evidence. According to the learned counsel, the complainant cannot be permitted now at the late stage of the case to summon the said witness. Learned counsel stresses that the revisional order does not show that order of acquittal passed by the competent Magistrate has been set aside. In this behalf, learned counsel relies upon Muhammad Ali v. State 1970 SCMR 189 and Abdul Hossain Sana v. Suwalal Agarwala etc. P L D 1962 SC 242.

Learned counsel for the respondent No. 1 submits that the order of acquittal of the accused had definitely merged in the final order having been passed by this Court on 19-2-1990 whereby a direction was given to the. learned trial Magistrate for conclusion of the trial of the accused on or before 10-1-1991. Learned counsel says that said order of this Court was never assailed by the present petitioner before the august Supreme Court.

3. I have heard the learned counsel for the parties and have read the record with care. Order, dated 19-12-1990 shows that it was passed by this Court on the basis of an agreement arrived at between the learned counsel for the parties. It was observed clearly in the said order that the order of the learned Additional Sessions Judge, dated 12-11-1990, remanding the case for retrial of the accused was justified in law. The earlier order of this Court dated 19-12-1990 is self-evident inasmuch as it could be said by implication that the order of acquittal passed by the learned trial Magistrate was not warranted in law. Admitteldy, this order holds the field because it was never challenged by the petitioner. The learned trial Magistrate had vast powers under section 540, Cr.P.C. to summon any person for recording his evidence in the case in the interest of justice. Dr. Mumtaz, a Radiologist was summoned to appear in the case to depose evidence. This is within the powers of the Court to summon any person to appear as a witness in appropriate cases. The impugned judgment passed by the learned Additional Sessions Judge on 30-1-1991 is a detailed one and all the points raised by the parties were attended to and clear findings thereon were given. Learned counsel was unable to point out any legal flaw in the case. In this view of the matter, there is no substance in the petition which is dismissed.