ORDER SHEET
IN THE HIGH COURT OF SINDH
AT KARACHI
Criminal Revision
Applications Nos. 108 & 110 of 2013
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DATE ORDER WITH SIGNATURE(S) OF
JUDGE(S)
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For Katcha Peshi.
10.09.2013
Mr. Shoukat Hayat Advocate for Applicants in Cr. Revision
Application No.108/2013.
Mr. Mohammad Zahid DAG along with Mirza Tanweer Assistant Legal FIA.
Ms. Rozina holding brief for Mr. Khaleeq
Ahmed in Cr. Revision Application No.110 of 2013.
-.-.-.-.-.
NAIMATULLAH PHULPOTO, J.- Through this single order, we
will dispose of Criminal Revision Application No.108 of 2013 filed by
applicants Shahid Pervaiz,
Syed Hassan Haider Zaidi, Aman Saeed and Syed Danish Hussain Naqvi, and Criminal
Revision Application No. 110 of 2013 filed by Safdar
Mehdi Abidi, by which the applicants have impugned
order dated 9th May 2013, passed by learned Presiding Officer,
Special Court (Offences in Banks) Sindh at Karachi.
2. For the sake of brevity, instead of
noting details of the facts of Criminal Case No.94/2011 (the State Vs. Shahid Pervaiz
and others) arising out of F.I.R. No.20/2011 FIA CBC Karachi u/s
409/420/468/471/109 PPC, it would be appropriate to reproduce herein below the
relevant portion of the order dated 9th May 2013.
“I have perused the R & P which reflects that case
pertains to year 2011 and after framing of charge the court has examined Pw Khashif Manzoor Shahid, and Pw Khalid Rasheed.
The examination in chief of Pw Khalid Rasheed was
completed by prosecution on 8.11.2012 but on the request of learned advocate
for accused cross examination of Pw was reserved and case was posted to
6.12.2012 but on that date on the request of accused matter was adjourned and
fixed on 25.1.2013. Again on 13.2.2013 Pw was present but on the request of
learned advocates case was adjourned subsequently on 25.2.2013, and 11.3.2013, the position was same but Pw was
present in court was reaffirmed and accused were provided opportunities to
cross examined the Pw. It is contention of learned advocates for accused that
they were busy before Hon’ble High court of Sindh but
I see that no cogent ground has been taken whereas, Pw was constantly in
attendance on last dates of hearing in the court. The case law supra produced
by learned advocates for accused is not considered as facts of those cases are
distinguishable with the facts of present case.”
3. Mr. Shoukat
Hayat learned counsel for the applicants/accused contended that cross-examination
of PW Khalid Rasheed is essential for just decision
of the case and without cross-examination true picture would not come before
the Court. He has further submitted that a fair trial is the right of the
accused. He has submitted that PW Khalid Rasheed
could not be cross-examined by him as he was busy before High Court in various
cases. In support of the contentions he has relied upon the case reported as Ansar Mehmood vs. Abdul
Khaliq and another (2011 S.C.M.R 713).
4. Mr. Mohammad Zahid
learned DAG recorded no objection on the basis of undertaking given by the learned
counsel for the applicants/accused to cross examine PW Khalid Rasheed on the date of hearing before the Trial Court.
5. We have given our conscious consideration
to the arguments advanced above and have gone through the Examine-in-Chief of
PW Khalid Rasheed recorded on 08.11.2012, he could
not be cross-examined by the Advocate for the accused, subsequently
side was closed. Mr. Shoukat Hayat Advocate for the applicants assigned reason that
he was busy before High Court in various cases on the date when side was
closed. It is admitted by the counsel for the parties that PW Khalid Rasheed is a material witness and his evidence would be
essential for just decision of the case. Before proceeding further, it is
advantageous to reproduce Section 540 Cr.P.C as under:-
“Power to summon material witness or examine persons
present—Any Court may, at any stage of any inquiry, trial or other
proceedings under this Code, summon any person as a witness, or examine any
person in attendance, though not summoned as a witness or recall and reexamine
any person already examined; and the Court shall summon and examine or recall
and re-examine any such person, if his evidence appears to it essential to the
just decision of the case.”
6. Bare reading of section 540 Cr.P.C
transpires that where an evidence is essential for
just decision of the case, it is obligatory upon the court to allow its
production and examination. Rightly reliance has been placed upon the case of Ansar Mehmood vs. Abdul
Khaliq and another (2011 SCMR 713). In such
circumstances, cross-examination of the material witness, namely, Khalid Rasheed,
would be essential for just decision of the case.
7. For what has been discussed above, these
Criminal Revisions Applications are allowed with direction to the Trial Court
to summon PW Khalid Rasheed for his cross-examination
learned counsel for the applicants/accused shall cross-examine the prosecution witness
Khalid Rasheed on the next date of hearing.
8. These are the reasons for our short order
announced on 10.09.2013.
JUDGE
JUDGE
Gulsher/PA