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Criminal Revision Application No. 190 of 1972, decided on 19^th February 1973.

--S. 253(2)‑Discharge of accused‑Magistrate discharging accused after examining some out of several prosecution witnesses --Witnesses not examined, either not traceable or had left country, while others not attending in spite of due service‑Held, omission to wait for witnesses who were not traceable or who had left country may be justified but non‑appearance of witnesses after due service would not absolve Magistrate of his duty to secure their attendance by issuing suitable process‑Proper opportunity not allowed to pro secution‑Order directing further enquiry, held, proper‑Criminal Procedure Code (V of 1898), S. 439.

Ameer Ahmed Khan for Applicant.

S. Murtaza Hussain for A.G. for the State.

Date of hearing: 19th February 1973.

This is a revision against the‑ order of City and Additional District Magistrate, Karachi, setting aside the discharge order passed by Additional City Magistrate, Karachi, and ordering further inquiry.

The applicant was challaned for an offence under sections 419, 420. 468 and 471, P. P. C. for forking a document pertaining to be an M.B.B.S. degree and on the basis of that forged degree he secured an employment in P.I.A.C. In the challan 24 witnesses were cited, out of them 9 were examined by the prosecution and one was given up. The learned Magistrate without waiting for the evidence of the remaining witnesses discharged the applicant. The learned Magistrate pointed out that there was no conclusive proof that the applicant had personated and used a forged document as genuine, and further core, the subject‑matter could more properly be of civil litigation.

Aggrieved by this a revision application was filed in the Court of Additional District Magistrate, Karachi. The learned Additional District Magistrate set aside the order and ordered further inquiry on the ground that a fair opportunity was not allowed to the prosecution to prove the case as 14 witnesses remained to be examined. Consequently the present revision had been filed.

I have heard the learned counsel for the applicant and the State and I see no reason to interfere with the order passed by the learned Additional District Magistrate. Admittedly 15 witnesses had not been examined in the case before the discharge order was passed. It was, however, pointed out by the learned counsel for the applicant that Dr. Maqbool Ahmed and Dr. Jalil bad gone to England while Dr. Bashir, Jalil Siddiqi and Mohammad Siddiq and Mahboob Ali Shah were not traceable as indicated by the process issued. It was further pointed out by him that Ghulam Abbas, Handwriting Expert and Raja Mohammad Ajaib though served did not attend the Court, while Dr. Munawwar had left P. I. A. service. Considering this contention there may be some justification for not waiting for the evidence of those witnesses who bad either gone to England or were not traceable, but there was no reason to abstain from examining the remaining witnesses. Non- appearance of two of the witnesses in obedience of the summons served upon them did not absolve the learned Magistrate of his duty in securing their attendance by issuing suitable process. Dr. Munir Ahmed though may have left the service but his address could have been obtained from the prosecu tion. It seems no such attempt was made. So far the remaining witnesses are concerned there was no ostensible reason for not examining them. The case diary further shows that the learned Magistrate had not issued summons since several months to the witnesses who were either said to have gone to England or were untraceable.

Thus, it is clear that proper opportunity was not allowed to the prosecu tion, as was held by the learned Additional District Magistrate. It is ridiculous to suggest that it was a civil matter. I, therefore, dismiss the revision application.

Petition dismissed

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