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Criminal Petition for Special Leave to Appeal No. K‑51 of 1979, decided on 9th October, 1979.

(On appeal from the judgment of the High Court of Sind at Karachi dated 8‑8‑1979 in Cr. Revision No. 17/79). .

Constitution of Pakistan (1973)‑--

‑‑ Art. 185 (3)‑Leave to appeal‑Submissions made by parties although important and intricate on academic plane and as abstract propositions of law requiring consideration by Supreme Court in a more appropriate case yet facts and circumstances and stage of proceedings of case in hand, held, not such as to justify interven tion‑Trial left to be concluded so that effect of action complained of can‑be reviewed, if necessary, in totality of facts of case and decision given therein.

Osman Ghani Rashid, Advocate‑General (Sind) for the State.

Nemo for Respondents.

Date of hearing : 9th October, 1979.

J.‑This is a petition on behalf of the State seeking leave to appeal against the dismissal of a Cr. Revision Petition by the High Court of Surd on 8th August, 1979. .

2. The circumstances in which such a petition has arisen are, in brief, that a girl by the name of Tarranum Aziz, aged about 8 years, was kidnap ped and later her dead body was found on 10th February, 1978 in Federal B Area, Karachi. A case was registered under sections 302/34, 364‑A/376/34 and 377/34, P. P. C. and the respondents were put up as accused after the investigation in the case was completed. The trial of the case started in the Court of Mirza Arshad Beg, Sessions Judge. Karachi, and was in progress when he retired on 31st December, 1978. Till then out of 53 witnesses for the prosecution evidence of 41 witnesses had been examined, 5 witnesses were given up by the prosecution and there remained 7 witnesses more to be examined. He was succeeded, by another officer as Sessions Judge. An application was presented before him by the accused facing the trial requesting that they did not want de novo trial or recall of the witnesses already examined as the trial had already been inordinately delayed and that they were willing that the case be proceeded further by examining the remaining witnesses. This application was resisted by the State decision was invited. The Sessions Judge came to the conclusion that in such a trial one of the considerations is that there should be no possibility of prejudice being caused to the accused". The accused were five in number, had remained in custody as under trial prisoners for nearly one year. The evidence of a large number of witnesses had been recorded and only a few witnesses remained to be examined. The Sessions Judge felt that the "interests of justice would better be served if the proceedings are commenced from the stage where left by my learned predecessor".

3. A revision petition was filed in the High Court. No interim order was passed. The revision petition was dismissed on the ground that "the prosecution had nothing to gain in the bargain, except playing with time, because anything which has been said by the present witnesses can easily be brought on the record even if there was to be a subsequently trial de novo."

4. It has to be noted that the trial Court has recorded that all the material witnesses have already been examined and only formal witnesses remained to be examined. The number of witnesses, in all, is 53, of whom only seven remain to be examined. No doubt, the submissions made and the legal objections taken to the proceedings are, on the academic plane and asabstract propositions of law, important and intricate. and may certainly require our consideration in a more appropriate case. The facts, the circumstances and the stage of the proceedings of the case before us in which such an exercise is required to be undertaken are not such as to justify our intervention We are more inclined to leave the trial to conclude so that the effect of the action complained of can be reviewed, if necessary, in the totality of the facts of the case and the decision given therein. We, therefore, dismiss this petition.

Petition dismissed.

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