MUHAMMAD NAWAZ KASURI, ADVOCATE, SUPREME COURT vs Mian ABDUL

' MUHAMMAD AFZAL LONE, J.---This judgment deals with Criminal Petitions Nos.299/L/92 & 300/L/92, which arise out of a private complaint brought by Mian Abdul Hameed respondent, under sections 497, 498, P.P.C. In January 1972, alleging therein that he used to consult the petitioner, who is a practising lawyer and developed friendly relations with him. That during his absence from the country, the petitioner developed sexual relations with his wife (respondent).

2. Criminal Petition No, 299/L/92 is directed against the dismissal of the petitioner's Criminal Revision No,400/89 by a learned Single Judge of the High Court. In the criminal revision the petitioner had challenged the learned Sessions Judge's order allowing the respondent to produce Syed Fida Hussain as a witness, whose name was not included in the list of witnesses annexed to the plaint under section 241-A, Cr.P.C. It is discernible from the record that the learned Sessions Judge relying on some case-law on the subject maintained that section 241-A, Cr.P.C. Enforced after the filing of the complaint, is not mandatory but directory in character. The High Court held that the respondent submitted the list of the witnesses on 25-1-1989, to which the petitioner did not raise any objection; although he was aware that who had to appear against him.

3. After hearing the learned counsel we do not find that he has e succeeded in creating any dent in the view taken by the Courts below to justify grant of leave prayed for.

4. As regards Crl. P. No, 300/L/92, it relates to the dismissal of the petitioner's application under section 247, Cr.P.C. By the learned Sessions Judge. Under this application the petitioner had sought the dismissal of the complaint on account of the respondent's absence. The High Court vide order dated 9-6-1992, under challenge before us, had declined to interfere with the orders of the learned Sessions Judge.

5. We have heard the learned counsel. A reference to the second proviso to section 247, Cr.P.C. Will provide that it does not apply where offence of which the accused is charged, is either cognizable or non-compoundable. There is no doubt that an offence under section 497 is a cognizable offence. When faced with this situation, the learned counsel did not have much to say in support of the petition. In any case, grant of leave in exercise of jurisdiction under Article 185(3) is essentially discretionary. Hollowness of the petitioner's contentions advanced in support of these petitions apart, keeping in view the facts and circumstances of the case, we do not consider these cases fit for grant of leave. Accordingly, both the petitions are dismissed and the leave prayed for refused.

6. It is lamentable that the respondent's complaint has endured a period of more than 20 years and his evidence has not been completed so far; presumably because of his involvement in the litigation emanating from the orders passed in the course of hearing of the complaint. The case needs to be disposed of expeditiously. The parties are directed to appear before the learned trial Court on 13-5-1993, as agreed upon by their learned counsel.