MUHAMMAD IDREES Versus THE STATE
On 21-7-1983, Police Station Lala Musa registered any case vide F. I. R, 217 against Chulam Nabi, Muhammad Aslam sons of Sher Ali, Akhtar Ali son of Ghulam Nabi, Pehalwan son of Taj Din, Allah Dad and Karam Dad sons of Nawab Din under provisions of section 452/506/ 148/149, P.P.C. After completion of the investigation the aforesaid accused were sent to face the trial. In course of trial the entire prosecution evidence was recorded except the statement of Dildar All Inspector/S.H.O., Police Station Lala Musa, Investigating Officer and Muhammad Hanif, S.I., Incharge, Police Chowki Kakrali. In course of trial these officers had been transferred and the summons sent to them could not be served and therefore, the case was adjourned on number of times. On account of the non-appearance of these Police Officers the accused then moved an application praying to close the evidence of the prosecution. The said application was allowed on the ground of non-appearance of these witnesses and the trial Court proceeded to record the statement of the accused under section 342, Cr.P.C.
2. Since the evidence of these Police Officers was very vital for the prosecution, therefore, a criminal revision challenging order of closing the evidence was filed in the Court of Sessions Judge, Gujrat which was entrusted to an Additional Sessions Judge. The said revision was not accompanied with a certified copy of the order impugned whereby the evidence of the prosecution was ordered to be closed and thus the learned Additional Sessions Judge dismissed the revision petition on the ground that it was not accompanied with the certified copy of the order impugned.
3. The complainant thereafter obtained a certified copy of the order impugned and filed another revision petition on 10-8-1986 but the same was also dismissed on the ground of limitation under Article 154 of the Limitation Act. The learned Additional Sessions Judge by analogy had applied Article 154 to dismiss the revision petition on the ground of limitation.
I have carefully gone through the orders impugned and I have also heard the learned counsel at length. The first revision petition was dismissed on 11-5-1986. The perusal of the said order shows that on 6-4-1987 it was noted that the revision petition was not accompanied by a certified copy of the order impugned and the case was adjourned for hearing the arguments as to whether such revision petition was maintainable. On 9-4-1986 the petitioner complainant moved an application seeking permission to place on the record a certified copy of the order impugned. The petitioner complainant further explained that he had filed only a photostat copy of the order impugned which was not certified and the same had been appended through mistake. The learned Additional Sessions Judge while dismissing the revision petition relied upon the commentary on the Criminal Procedure Code by Shaukat Mahmood. The learned Additional Sessions Judge observed that an applicant moving a revision petition must be prepared with his case and with the documents in support of the application and the High Court will not send for the record unless there was sufficient material to justify that course and will not adjourn the case merely to enable a party what he should have done before prosecuting the application. Reliance was also placed on a judgment reported as Mukund Martu Bhujale v. Emperor A I R 1940 Bom. 283.
5. When the second revision petition was filed by the complainant alongwith a certified copy of the order impugned, learned Additional Sessions Judge by placing reliance upon the judgment reported as Muhammad Nur Ali and others v. State P L D 1961 Dacca 239, observed that the revision petition should have been filed within 30 days of the passing of the impugned order and, therefore, the revision petition was barred by time. In support of this finding, learned Additional Sessions Judge drew analogy from Article 154 of the Limitation Act.
6. Obviously, the learned Additional Sessions Judge fell into grave error by holding that the revision petition was barred by time on the ground of analogy drawn from Article 154 of the Limitation Act. This is an erroneous view and thus needs rectification. The law is very clear. No period has been prescribed for filing a revision petition under the Criminal Procedure Code but this Court as well as the C other superior Courts have laid down that the same should be filed within a reasonable period. What is reasonable period is a question of fact and depends upon the facts and circumstances of each case. As far as this case is concerned, the first revision petition which was dismissed for want of certified copy of the order impugned cannot be said to have been dismissed on merits. The second revision petition accompanied by a certified copy of the impugned order was filed on 22-5-1986 against the impugned order dated 8-1-1986. The first revision petition challenging the same order was dismissed on 11-5-1986. In the circumstances of the case since the first revision was not dismissed on merits, therefore, the order of dismissal does not amount to a judgment. In support of this view, I am fortified by the judgment o this Court reported as Nasrullah and 2 others v. The State P L D 1987 Lah.
31. Though the said case pertains to an appeal, but the principle of law laid down in the said case will also govern the disposal of revision petitions. Accordingly I hold that since first revision petition was not decided on merits, therefore, the same does not amount to a judgment. The revisional power vested in a Sessions Court and High Court is in fact a supervisory power. Both the Courts have concurrent jurisdiction including suo motu powers to rectify any illegality. The High Court and the Sessions Court are empowered to check correctness, legality or propriety of an order and the legislature in its wisdom has therefore, not prescribed any period, for filing a revision petition by a party to a lis. In my view, the error was committed by the Additional Sessions Judge while dismissing the first revision petition because the learned Additional Sessions Judge ought to have allowed an opportunity to the complainant to place on the record the certified copy of the order impugned. Similarly, the error was committed by the learned Additional Sessions Judge while dismissing second revision petition on the ground of limitation. I am further fortified by the following judgments of the Supreme Court of Pakistan and the other Courts to hold that the dismissal of the first revision petition would not amount to a judgment because the merits of the case were not touched. See Muhammad Ramzan v. Allah aitta and others 1982 S C M R 215, Bibhuty Mohun Roy v. Desimnoi Dassi (1909) 10 Cr.L J 287, Kishan Singh v. Girdhary Lal and another A I R 1924 Lah. 310, Ibrahim and another v. Emperor A I R 1928 Rang. 288, Kamautar Thakur and others v. State of Bihar A I R 1975 Pat. 333 and Abdullah v. Din Muhammad Shah and 4 others P L D 1976 Kar. 1184. As far as the judgment reported as Muhammad Nur Ali and others v. The State P L D 1961 Dacca 239 is concerned, no doubt, the analogy was drawn from Article 154 of the Limitation Act, in the disposal of the revision but at the same time Mr. Justice Hamoodur Rehman, then Judge of Dacca High Court also observed as under:--
"It is highly desirable that a uniform practice should prevail in such cases; but at the same time, this rule should not become an inflexible one nor can it be said that it should not be departed from even in exceptional cases. But where it is so departed from, it would only be reasonable to expect that some reason for such departure would be given indicating the exceptional nature of the circumstances upon the ground of which the departure is being made. It would neither be proper nor desirable to lay down any more specific rule but it must be left to the good sense of the Courts entertaining such applications to determine in which case a departure should be made from this well-accepted rule of practice."
In the facts and circumstances of this case it is also further noteworthy to mention for the guidance of the Courts below that the official witnesses should be summoned through their Heads of the Departments. In this case, in my view no proper effort was made to secure the attendance of the Police Officers. In this view of the matter, I would accept this revision and set aside the order impugned, dated 8-1-1986. The trial Court is directed to secure the attendance of the Police Officers even if coercive measure is to be resorted to meet the ends of justice.
S. G. D. /M-510/L Petition accepted.