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Criminal Miscellaneous No. 1008 of 1965, decided on 30th June 1976.

- S. 439-Trial Court after allowing three adjournments to pro secution for producing Investigating Officer, an important prosecution witness, closing prosecuting evidence-Such prosecution witness, however, reported to be out of Pakistan on first occasion while on leave on later occasions-Order of trial Court set aside, in circum stances-Trial Court further directed to afford opportunity to prosecution to examine such witness.

The facts of this case are as follows :-

Mst. Arab - Khatoon made an application to the Police of Mochigate Lahore, that (Mst. Naziran Begum) widow of Sh. Fazal Elahi deceased rented a plot to her saying that the plot belonged to her and also obtained Rs. 4,000, as pagrhi from her (Mst. Arab Khatoon). On this plot Mst. Arab Khatoon made construction and set up a factory. Subsequently, she learnt that the plot belonged to the Court of Wards but was illegally occupied by Mst. Nazir Begum. On -this Mst. Arab Khatoon demanded the amount of pagrhi from Mst. Nazir Begum. She promised to return this amount but put off its actual payment on one pretext or the other. Ultimately, on 27-9-61 Mst. Nazir Begum and her brother Muhammad Aslam broke open the locks of the factory and put their own locks thereon. With these allegations Mst. Arab Khatoon requested the Police to take penal action against Mst Nazir Begum and Muhammad Aslam.

2. On the score of the above application by Mst. Arab Khatoon the police of Mochigate, Lahore, registered a case under section 448/420 of the Pakistan Penal Code against Muhammad Aslam but not against Ms). Nazir Begum. Thereupon, Mst. Arab Khatoon made a complaint against Muhammad Aslam and Mst. Nazir Begum under section 448/420, P. P. C.

3. The case registered by the police as well as the complaint by Mst. Arab Khatoon are being tried by Mr. Abdur Rashid, Magistrate 1st Class, Lahore.

4. The learned Magistrate consolidated the two cases and after record ing some evidence of the prosecution charged both the accused under section 448/34, P. P. C. The accused pleaded not guilty. Then, he fixed the case for 24-8-64 for remaining evidence of the prosecution. The prosecution wanted to examine the Investigating Officer, Khan Muhammad Asghar Khan, City Inspector, Lahore, as a witness but the learned Magistrate closed the prosecution evidence on the said date and refused to allow any further opportunity to the prosecution to produce any other evidence. Aggrieved, by this order, Mst. Arab Khatoon has come up in revision.

The proceedings are forwarded for revision on the following grounds :-

1. While passing the impugned order the learned Magistrate observed that the prosecution was given many, opportunities to produce evidence but the witness (Khan Muhammad Asghar Khan) was not present even on 24-8-64. He further said that as the case was an old one it could not be further adjourned. The record shows that the charge was framed on 7-7-64. Then the case was fixed for 18-7-64 for the evidence of Khan Muhammad Asghar Khan. On this date he did not turn up and was ordered to be summoned again for 3-8-64. On 3-8-64, the Presiding Officer was on leave and the case was adjourned to 24-8-64 when the prosecution evidence was closed by the impugned order.

2. It would appear from the record that before the framing of charge Khan Muhammad Asghar Khan was summoned on 6-3-63, but the report received was that he had gone to the United States of America. After charging the accused, the Court issued summons to Khan Muhammad Asghar Khan for 3-8-64 and the report received was that he was on leave for four months. As indicated earlier, the Presiding Officer was also on leave on 3-8-64 and the case was adjourned to 24-8-64 when the prosecution evidence was closed. All this would demonstrate that the prosecution is not to blame for the non-appearance of Khan Muhammad Asghar Khan before the trial Court. He could not be made available to the Court for unavoid able reasons. .In the circumstances, it seems. just and proper - that ,the pro secution should be given reasonable opportunity to produce Khan Muham mad Asghar Khan in evidence.

The order of the learned Magistrate, dated 24-8-64, may be set aside and the trial Court directed to afford reasonable opportunity to the prosecution to examine Khan Muhammad Asghar Khan in support of its case.

Ch. Khurshid Ahmad for Petitioner.

Nemo for Respondents.

M. A. Zafar for the State.

Date of hearing : 30th June 1976.

A reference under section 438, Cr. P. C. has been made by the Addi tional Sessions Judge Lahore dated 14-10-1965 in a case titled "Mst. Arab Khatoon v. Sh. Mohammad Aslam with the recommendation that the order of the learned Magistrate dated 24-8-1964 by which he refused to afford opportunity to the prosecution to produce further evidence, be set aside.

2. The complaint and challan were consolidated, arising .out of the same incident, by the trial Court who summoned Khan: Mohammad Asghar Khan, City Inspector, Lahore, as a witness but ultimately had to dispense with his presence because he was not available. After closing the evidence of the prosecution he charged the respondent under section 448/34, P. P. C. on 7-7-1964. The prosecution felt aggrieved that an important witness like Khan Mohammad Asghar Khan was not allowed to appear before the Court due to no fault of the prosecuting agency. She filed a revision before the learned Additional Sessions Judge; to this effect. The learned Additional Sessions Judge while going through the record found that in fact the learned trial Magistrate was not justified to dispense with the presence of Khan Muhammad Asghar Khan as it was only on three occasions that he could not appear because once he was away to U. S. A. and second time he was on four months leave and on one occasion, according to himself, was not available being on leave. In view of this data on the record of this case learned Additional Sessions Judge has recommended that the order of the learned Magistrate dated 24-8-1964 be set aside and trial Court be directed to afford an opportunity to examine Khan Mohammad Asghar Khan in this case.

3. I have given my anxious thought to the recommendation of the learned Additional Sessions Judge and find that this is based on good ground and is supported by the record of this case. The learned counsel appearing on behalf of the petitioner has submitted that this case should have been decided as soon as the reference was submitted before this Court and the delay of 10 years might have materially changed the alignment of the parties as well as their line of action. He has also considered it unfair that the respondent should be asked to face consequences of litigation after the lapse of such a long time. I am afraid this would not be material in this case because even if I reject the reference, the case will have to start once again from the defence stage. If this would have been a matter of retrial, I would have reluctantly allowed the same. But in the instant case, as observed above, the case is to be tried from the defence stage and if one more peshi takes place for recording evidence of Khan Mohammad Asghar Khan who is easily available as being posted as S. S. P., Multan, the trial may be concluded.

4. Therefore I accept the reference, set aside the order of the learned trial Court dated 24-8-1964, and direct it to summon and examine Khan Mohammad Asghar Khan in support of the prosecution version. However, before parting with the case I will impress upon the trial Court to give top priority to this case as it has already suffered 10 years of delay while lying in the cold storage in the some branch of this Court.

Reference accepted.

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