THE HIGH COURT OF SINDH AT KARACHI
Criminal Revision Application No.179 of 2019
Mr. Kazim Raza Abidi, Advocate
& 5 others …………… Applicants
versus
Learned XVIIIth Judicial Magistrate
Karachi (South) & another …………… Respondents
Date of hearing : 15.11.2019
Date of Order : 15.11.2019
M/s. Hassan M. Abidi & Mohsen Khan, Advocates for the Applicants.
Applicant No.1, Mr. Kazim Raza Abidi, Advocate is in attendance.
Mr. Abdullah Rajput, Deputy Prosecutor General, Sindh.
None present for the complainant though served.
ORDER
Abdul Maalik Gaddi, J. Through this criminal revision application, the applicants have assailed the legality and propriety of the order dated 28.08.2019, passed by the learned XVIIIth Judicial Magistrate, Karachi (South), in Criminal Case No.2290 of 2017 [re. The State v. Qamber Ali and others], arising out of Crime No.73 of 2017, registered at police station Nabi Bux, under Section 147/148/149/337-A(i), PPC, whereby the learned trial Court during recording of evidence of PW Sarwar Ali, passed the impugned order. For the sake of convenience, it would be appropriate to reproduce the said order, which reads as under:-
“Case Diary 28.08.2019.
Case has been called. The accused persons along with their learned counsels; the learned ADPP; the complainant along with his witnesses and learned counsel have appeared. Deposition of complainant was started; during cross-examination of complainant learned defence counsel asked this court to exhibit photocopy of statement of the complainant recorded u/s 161 Cr.P.C. whereupon this Court had put note that statement U/s 161 Cr.P.C. has shown to the complainant, but this Court had not exhibited the same, because photocopy of any document and especially statement U/s 161 Cr.P.C. could not be exhibited on request of defence counsel, however he was not restricted to refer and ask any question in respect of statement U/s 161 Cr.P.C. On this the learned defence counsel became annoyed and filed statement/case law at Bar written on 17 pages, while arguing he started shouting and mis-behaving with the undersigned in presence of learned ADPP and learned counsel for the complainant; the learned defence counsel has put several allegations towards Presiding Officer and directed to refer the case as he is going to file complaint against the Presiding Officer before Honourable Chief Justice. Learned defence counsel while leaving the Court has thrown case file on table of Court and has said that judges are illiterate. The learned defence counsel had also mis-behaved/abused to complainant during his deposition. At this juncture this Court departs the case from its schedule and adjourn the same to 28.09.2019. The learned defence counsel is at liberty to get transfer this case if he has no trust towards the Presiding Officer. Late diary At 02:20 PM Presiding Officer was in open court when learned defence counsel had appeared and filed application for certified copy and statement at Bar. The learned counsel again written baseless allegations in this statement at Bar, which is kept on record.
2. Facts necessary as alleged in this criminal revision application are that on 28.08.2019, the examination-in-chief of complainant/PW-1 namely, Sarwar Ali was being recorded before the trial Court (Model Court) soon thereafter, the applicant No.1 has started cross examining the PW-1 and during cross examination, the complainant on a question put to him has replied that “I recorded my statement under Section 161, Cr.P.C. on the same day”. The said PW-1 was shown copy of his earlier statement to confront him as provided under Article 140 of Qanun-e-Shahadat Order, 1984, but the learned Magistrate verbally refused to confront and exhibit the same.
3. It is argued by the learned counsel for the applicants that the impugned order passed by the trial Court is against the law and on facts and according to him since a pure question of law in public interest is involved in this revision application, therefore, after examining the said question of law, this Court may be pleased to set-aside the impugned order dated 28.08.2019 and direct the learned Magistrate to complete the evidence expeditiously in accordance with law as declared by the Hon’ble Superior Courts in various pronouncements and also passed order to expunge the remarks passed by the Presiding Officer of the trial Court against applicant No.1; that in this matter, the applicants were deprived to place on record their submissions in cross examination; that the accused have every right to ask any question from the witness in accordance with law, but in the present case, the Presiding Officer of the trial Court did not allow them to put certain question which goes to the root of the case. On question of maintainability of this criminal revision application, they submit that this revision application is maintainable under the law and this Court is competent to decide the questions involved in this case. During the course of arguments, learned counsel for the applicants have reiterated the same facts and grounds, which they have urged in this criminal revision application, however, in support of their arguments, they have relied upon the following case laws:-
(i) Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi and another reported in 1983 SCMR 775;
(ii) Sikandar Hayat and 4 others v. Master Fazal Karim reported in PLD 1971 Supreme Court 730;
(iii) Haleem Shah v. the State reported in PLD 1996 Karachi 306;
(iv) Muhammad Yousaf v. Dr. Madad Ali alias Gulab Laskani and 8 others reported in PLD 2002 Karachi 328;
(v) Abdul Sattar Fazal Din v. the State reported in 1971 P.Cr.L.J. 228;
(vi) Ms. Fatima Chandio and another v. the State reported in 2017 YLR Note 136;
(vii) Article 140 of the Qanun-e-Shahadat Order, 1984.
4. As against this, learned Deputy Prosecutor General has opposed this criminal revision application on the ground that the same has been filed directly before this Court for redressal of their grievances without approaching to the concerned Sessions Judge, therefore, he was of the view that under the facts and circumstances of the case, the applicants may be directed to approach the concerned Court for redressal of their grievances.
5. Parties advocates have been heard and record perused.
6. At the very outset, it has been asked from the learned counsel for the applicants as to how this revision application is maintainable against any grievance which has been arisen out from the proceedings which are pending on the file of Judicial Magistrate, in view of Section 439, Cr.P.C., which states that remedy against the order of Magistrate is revision before the Sessions Judge.
7. It need not be said that though Section 439, Cr.P.C. provides concurrent jurisdiction to the High Court as well as Sessions Judge, but it does not mean that an aggrieved party being aggrieved by an order of Magistrate, who is deemed to be inferior to the Sessions Judge as provided in explanation of Section 439, Cr.P.C., can directly approached the High Court as an option available to him for the reasons that an order passed by the Judicial Magistrate can be examined by this Court in revision application as the point involved in the case related to public importance. I am not impressed with the arguments of learned counsel for the applicants that in case of direct revision before this Court against the order passed by the Magistrate, the remedy against the order of this Court would be before the Hon’ble Supreme Court and in that matter, the aggrieved party would lose a forum of appeal/revision before approaching to the Hon’ble Supreme Court, which is not only against the norms of law, but also in violation of principle of fair trial as mentioned in Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973. Learned counsel for the applicants have failed to satisfy this Court with regard to direct approaching to this Court for redressal of their grievances, therefore, without touching the merits of the case and in view of the given facts and circumstances of the case, this criminal revision application is being disposed of, along with listed application. However, the applicants would be at liberty to approach the concerned forum/Sessions Judge concerned for redressal of their grievances, if they so desire, and on filing such proceedings, the concerned forum shall decide the same as per law. The case laws cited by the learned counsel for the applicants have been perused and considered by me, but did not find applicable to the facts of the present case, therefore, the same are not helpful for them.
8. The criminal revision application stands disposed of, along with listed application in the above terms.
JUDGE
Faizan A. Rathore/PA*