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Criminal Reference No. 5564 of 1969, decided on 4th Novem ber 1970.
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---‑Police Challan and direct complaint consoli dated‑Complainant fearing that certain relevant documents would be withheld in case prosecution is conducted by Prosecuting Sub- Inspector‑Prosecution on agreement of parties, ordered to be con ducted by complainant's counsel with Prosecuting Sub‑Inspector's assistance‑Medical witness, in whose respect the difference arose, however, ordered to be examined as Court witness‑Penal Code (XLV of 1860), Ss. 392, 363 & 342/109.
Manzoor Hussain for A.‑G. for Appellant.
Abdul Wahab Khan for Respondent No. 1.
G. M. Shah for Respondents Nos. 2 to 5.
Date of hearing : 4th November 1970.
This is a reference by the Additional Sessions Judge, Karachi to quash the orders passed by the Additional City Magistrate, Karachi dated the 30th July 1969 and 5th September 1969.
On 16‑5‑68 Ashiq Ali lodged the first report with the police against the respondents 2 to 5, namely, Ghalib Ali, Hassan Kaiser, Mst. Shaishta and Mst. Azra for an offence under sections 363‑342, P. P. C. for kidnapping his daughter Mst. Shaheen Kauser who according to him was said to be aged about 14 years. The case was investigated and the girl was recovered. It is said that she was robbed of her articles. However, the four respondents were challaned on 10‑6‑68 for offences under sections 363 and 342, P. P. C. in the Court of the S. D. M. Nazimabad. The complainant filed a direct com plaint under sections 392, 363, 342 and 109, P. P. C. in the same Court on 8‑8‑68. The cases were then transferred to Court No. 6 and thereafter to the Court of Mrs. Surya Ahmed Pai who recorded the evidence of the complainant and examina tion‑in‑chief of one witness, in the direct complaint filed by the complainant. Thereafter both the cases were transferred to Court No. 11 where the learned Magistrate consolidated both the cases. However, no progress was made. A review application was made by the complainant to proceed with the cases separately but this application was rejected. The authority of the Supreme Court in the case of Nur Ilahi v. State and others (PLD1966SC708) was distinguished. Aggrieved by these orders a revision application was filed in the Sessions Court and it was disposed of by the learned Additional Sessions Judge who was of the view that the authority of the Supreme Court was not distinguishable and the principles laid down therein that the complaint case should proceed first ought to have been followed by the learned Magis trate. He, therefore, made the present reference.
Before proceeding further it may be pointed out that in the direct complaint which was filed not only the allegation of robbery was made but three Additional witnesses were named. The complainant had produced certain documents during the police investigation in respect of the age of his daughter to show that she was a minor aged about 141 ; years but the police withheld those documents and sent the girl to the Medical Officer who gave the opinion that slid was aged between 15 and 16 years.
I have heard the learned counsel for the parties as well as for the State. The grievance which was made by Mr. M. A. Wahab Khan the learned counsel for the complainant is that on the consolidation of the: cases the prosecution would be conducted by P. S. I. and he would lead the medical evidence withholding the documents which had been produced by him, during police investigation. In order to allay this fear, it was agreed by the learned counsels for the parties that without disturbing the consolidation of the cases, as ordered by the learned: Magistrate, the prosecution should be conducted by Mr. M. A. Wahab Khan who represented the complainant and he may lead any evidence that he may chose to do while the medical officer who examined the girl, regarding her age, may be examined by the learned Magistrate under section 540‑A. Cr. P. C. allowing opportunity to both the parties to cross- examine. In view of this agreement the reference stands dis posed of. However, I order that the P. S. I. may assist Mr. M. A. Wahab Khan as the police papers are in hi custody.
Order accordingly.
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