BASHIR AHMAD vs THE STATE AND ANOTHER

ORDER

1. ' SALAHUDDIN AHMED, J.-The petition is barred by 32 days. The explanation for the delay is unsatisfactory. The impugned order was passed on the 11th of January, 1974, and although the certified copy was ready for delivery on the 12th of February, 1974, it was delivered on the 18th of February, 1974. The petitioner says that he suffered from Typhoid fever from the 4th of February.

2. 1974, to the 1st of March, 1974, and he, therefore, could not contact his Advocate and give instructions to file the review in this matter. He finally contacted his Advocate on the 22nd of March, 1974, but could not file the petition on the 22nd of March, 1974, 23rd of March 1974, was a Gazetted holiday and 24th of March was Sunday. The petition for special leave was filed on 26-3-74.

3. ' There is also no merit in the case.

4. ' This leave petition is from an order of the learned Chief Justice of High Court of Sind & Baluchistan dismissing the petitioner's revision application and refusing to interfere with the order of the learned Sessions Judge directing re-examination of a prosecution witness.

5. ' It appears that upon a first information report lodged by respondent No, 2 Sohail Ahmad Rana a charge-sheet was framed against the petitioner and he was put on trial under section 453 of the Pakistan Penal Code before an Additional City Magistrate at Karachi. In course of the trial Shakoor Ahmed Rana, father of respondent No, 2 complainant, was examined as prosecution witness No, 2.

6. Subsequently, the prosecution alleged that the record of the case had been tampered with inasmuch as one of the pages upon which the deposition of P. W. Shakoor Ahmad Rana was recorded had been entirely replaced by a fresh page. An application was, accordingly, made under section 540 of the Code of Criminal Procedure for recalling and re-examining the witness.

7. The prosecution filed another application under section 476 of the Code of Criminal Procedure for holding an inquiry.

8. ' The application under section 540 was finally allowed. The petitioner thereupon approached the Court of Sessions on a revision petition and the Court recommended to the High Court that the impugned order should be quashed. A learned Single Judge of the High Court, who heard the reference, set aside the impugned order, and observed that if the inquiry under section 476 of the Code of Criminal Procedure established that the evidence in question had been tampered with and altered, the prosecution would be entitled to apply for examination of the witness again. It may be mentioned here that at the time the inquiry under section 476 of the Code was still pending. This inquiry has since been completed, and it has been held that the evidence was in fact tampered with. No consequently order regarding lodging a complaint was, however, made. The petitioner went up in revision from this order before the Court of Sessions but it was dismissed. The Court of Sessions agreed with the finding of the Magistrate that the evidence had been tampered with.

9. ' In the meantime in accordance with the aforesaid observations of the learned Single Judge an application under section 540 of the Code of Criminal Procedure was again made before the trial Court.

10. ' The petitioner thereafter approached the High Court in revision from the order of the learned Sessions Judge and the Magistrate passed on the application under section 476 of the Code. The learned Chief Justice of the High Court directed the Magistrate concerned to apply his mind to certain aspect of the matter and to make a definite order regarding filing or refusing to file a complaint. The learned Chief Justice refused to interfere with the concurrent finding of fact arrived at by the Magistrate and learned Sessions Judge. As regards the main grievance of the petitioner that the order directing re-examination of the witness under section 540 of the Code of Criminal Procedure was illegal, and it should, therefore, be set aside, the learned Chief Justice found no substance in it and refused to interfere with the order directing re-summoning and re-examining the witness under section 540 of the Code. The petitioner has failed to point out any legal flaw in the order of the learned Chief Justice, and we ourselves see no reason to interfere with the order.

11. Under section 540 of the Code a Court is fully competent to re-summon and re-examine a witness.

12. ' The petition is accordingly dismissed.