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