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Criminal Revision No. 91 of 1977, decided on 24th May 1977.
‑‑ S. 540‑Cross‑examination of witnesses reserved on request of accused but opportunity not availed of on adjourned dates of hearing nor further adjournment sought‑Application filed under S. 540, Cr. P. C. for recalling witnesses for cross‑examination rejected by trial Court‑Application against order of trial Court coming up before High Court after about 12 years when most of witnesses no longer available and case already completed and only judgment reserved, pending decision of accused's application Recalling witnesses at such a late stage, held, inexpedient and accused equally responsible for state of affairs‑Petition dismissed, in circumstances. [Witness].
Habibur Rashid for Applicant.
Mohammad Ali Sheikh and M. I. Memon for the State.
Date of hearing : 24th May 1977.
This revision application under section 439, Cr. P. C. is directed against the order passed by 3rd Additional Sessions Judge. Hyderabad under sec tion 540, Cr. P. C. refusing to recall prosecution witnesses for cross- examination.
2. The facts in brief are that a direct complaint for offences under sec tions 392, 380, 452, 448, P. P. C. was filed is the Court of II Additional City Magistrate, Hyderabad as far back as 8‑5‑1965. After the committal enquiry, the case ultimately committed to the Court of Session at Hyderabad. The trial actually commenced on 10‑5‑1976 when complainant Bashir Ahmad was examined in chief. The cross‑examination of this witness was reserved on the application of Mr. Ahad Yousuf on behalf of the accused. The remaining witnesses were discharged and the hearing was adjourned to 2‑7‑1976. On that day the counsel for the accused remained absent. No application was presented for adjournment on that date. The com plainant again entered the box for cross‑examination and the learned Additional Sessions Judge wrote that no cross‑examination was conducted by the accused although opportunity was given. The remaining witnesses were then examined but the accused did not want to cross‑examine them. This revision application was then filed on 16‑3‑1977 after an applica tion to recall the witnesses was rejected on 21‑8‑1976.
3. Mr. Muhammad Ali Sheikh has stated on behalf of the complainant that since no stay had been allowed the case has by now been completed and only the judgment is reserved pending the decision of this application. He has further pointed out that accused were asked questions under section 342, Cr. P. C. but they refused to give any statement as they stated that the matter of recalling of the prosecution witnesses under section 540 was pending in the High Court. Mr. Shaikh has further pointed out that most of the prosecution witnesses examined are no longer available and cannot be recalled, for instance, he has stated that most of these witnesses have left Pakistan for Saudi Arabia, Libya etc. One Imtiaz Ali witness has died.
4. Thus this is a very old matter pertaining to the year 1965. By now the matter is nearly 12 years old. It would not be expedient to protract the trial by ordering recall of prosecution witnesses at this late stage when the case is fixed for judgment. Most of the witnesses are no longer available and sufficient opportunity appears to have been allowed to the accused to effec tively cross‑examine the prosecution witnesses and the cross‑examination of the complainant was reserved far the purpose, while the examination of the other witnesses was postponed. The Court is not supposed to go on adjourn ing the case from time to time until the accused finally arrange to engage a counsel for the purpose of cross‑examination. Sufficient time was allowed to the accused but they failed to produce their counsel for the purpose of cross -examination. They are thus themselves responsible for such state of affairs and they cannot afterwards move for recall of the witnesses for the purpose of cross‑examination. In any case it would not be in the interest of justice to delay the trial any further. This application is accordingly dismissed.
Application dismissed.
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