IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. Revision Appln. No. D- 13 of 2021.

Present:

Mr. Justice Shamsuddin Abbasi.

Mr. Justice Amjad Ali Sahito.

Muhammad Tahir Napar. ……….…...Applicant.

Versus

The State & others. ..…….….Respondents.

Mr. Muhammad Ali Napar, Advocate for applicant.

Mr. Ahsan Ahmed Memon, Advocate for respondent No.2.

Mr. Aqeel Abbas Soomro, Advocate for respondent No.3.

Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

Date of hearing: 26.10.2022.

Date of Decision: 26.10.2022.

ORDER

Amjad Ali Sahito, J- Through captioned criminal revision application, the applicant has impugned order dated 23.10.2021, passed by the learned Special Judge, Anti-Terrorism Court Shikarpur, whereby he has dismissed an application filed by applicant/ complainant in terms of Section 540 Cr.P.C for calling and examining three witnesses, namely, Ghulam Akbar, Shah Nawaz and Shamasuddin in Sessions Case No.56/2021 State v. Sultan Rind and others, arisen out of F.I.R No.41/2021, registered with P.S Lakhi Gate, Shikarpur, for offences punishable under Section 384, 386, 186, 34 P.P.C, read with Sections 6/7 Anti-Terrorism Act, 1997.

2. The relevant facts for filing of instant revision application are that the applicant is complainant in aforesaid case, which is pending trial before learned Special Judge Anti-Terrorism Court, Shikarpur, wherein the applicant/ complainant through his private counsel filed an application for calling and recording evidence of witnesses named-above. Such application was dismissed by learned trial Court by impugned Order, hence instant criminal revision application has been filed by applicant before this Court.

3. Heard learned counsel for the applicant, as well as learned counsel for respondents/ accused and learned D.P.G. appearing for the State. The former prayed for grant of application, while latter opposed its grant.

4. Learned counsel for the applicant mainly contended that, impugned order passed learned trial Court is without applying judicial mind and application filed by applicant/ complainant was dismissing with no reasoning; that the evidence sought to be recorded was essential and necessary and helpful for learned trial Court to reach the correct conclusion to administer justice to the parties; that the names of the witnesses sought to be examined were very much available in the challan sheet in the calendar of witnesses and one of them is the eyewitness of the case, even then the learned trial Court declined to call and examine them. Lastly, learned counsel prayed for grant of revision by directing the learned trial Court to call and examine the witnesses as prayed.

5. Conversely, learned D.P.G. as well as learned counsel appearing for accused/ respondents No.2 and 3 opposed the grant of instant revision by contending that the impugned order passed by learned trial Court being an speaking order is well reasoned and it is passed in accordance with law by considering all aspects of the case.

6. Heard learned counsel for respective parties and perused the impugned order. The learned trial Court while passing the impugned order has observed as under:

(i) The charge was framed against accused and prosecution examined four witnesses, then the Prosecutor closed side vide statement dated 02.10.2021 and case was fixed for recording statement of accused under Section 342 Cr.P.C and such statements were recorded and ultimately the case was adjourned to 16.10.2021 for final arguments. Meanwhile, junior partner of Advocate for complainant filed an application under Section 540 Cr.P.C for calling three witnesses for recording their evidence.

(ii) The object of Section 540 Cr.P.C is to defend the interest of justice and not to defeat the same; however a plea for summoning of witness cannot be allowed to prolong the proceedings of a trial.

(iii) The learned A.P.G. who is Incharge of the case can call prosecution witnesses at any stage and having a right to use its witnesses, therefore, in the present matter the prosecution has examined the required P.Ws and has closed the side.

(iv) The private counsel or his junior partner engaged by the complainant is also attending the Court since framing of the charge against accused but has not raised any objection nor advised the learned APG not to close the side. The learned APG also closed the side with consent of private counsel in open Court and thereafter case was fixed for recording statements under Section 342 Cr.P.C and after recording such statements the learned private counsel engaged by complainant did not raise any objection, but thereafter moving instant application is nothing but to linger on the case and drag the accused unnecessarily at the instance of complainant party.

(v) The learned private counsel has not given proper reasons nor the gist of evidence left by prosecution for which he is calling them.

(vi) Moreover, the Section 493 Cr.P.C empowers to Public Prosecutor to plea the case under his Charge, the Advocates privately instructed to be under his directions.

7. The reasoning given by the learned trial Court while dismissing the application of complainant seems to be justified and well reasoned with regard to merits of the case as well as legal aspect to the effect that it is the only Prosecutor, who is Incharge of the case and any counsel privately instructed should have to act under his directions. From its careful perusal it is found that, the merits of the case as well as legal aspect observed by the trial Court have been suitably highlighted in the order and such observations of the trial Court on material points seems to be proper.

8. When called upon to point out any other infirmity afflicting the impugned order, particularly the points noted hereinabove, the learned counsel for the applicant was found wanting and could not point out any such error or omission excepting repeating the same arguments.

9. Considering the facts and circumstances referred supra, we are of the considered view that the impugned order passed by the learned trial Court has no infirmity and illegality; as such it does not require any interference of this Court in the revisional jurisdiction. Accordingly, for the above reasons, the impugned order is hereby upheld and instant revision application being devoid of merits is dismissed.

Judge

Ansari