ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Cr. Misc. Application No.353 of 2023

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Date Order With Signature Of Judge

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Present: Naimatullah Phulpoto, J

Irshad Ali Shah, J

1. For orders on MA No.6440/2023

2. For hearing of main case

3. For hearing of MA No.6441/2023

03.10.2024

Mr. Ali Hyder Saleem, Additional Prosecutor General Sindh

Mr. Aftab Ahmed, advocate for respondent No.25

Shahid Rehman, Ghaffar Mama, Ameen Baloch, Zakir Hussain and Ramzan, respondents are present in person

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NAIMATULLAH PHULPOTO, J.- Through this Cr. Misc. Application, the State through Prosecutor General Sindh has called in question the orders dated 27.03.2023 and 19.04.2023 passed by learned Judge Anti-Terrorism Court-XII, Karachi in Special Case No.62 of 2020, whereby prosecution’s side was closed and case was fixed for recording the statements of the accused u/s 342 Cr.P.C.

2. Notice of this application was issued to the respondents.

3. Learned Addl. P.G contended that due to some mistake he has filed this Criminal Misc. Application as orders are impugned through instant Crl. Revision Application, which may be converted to the Revision Application. Order accordingly.

4. Brief facts leading to closing the prosecution’s side by the trial Court are that Special Case No. 62/2020 was fixed before the trial Court on 27.03.2023, prosecution failed to produce its remaining witnesses therefore its side was closed by the trial Court vide order dated 27.03.2023.

5. Thereafter, an application for recalling order dated 27.03.2023 was filed by the prosecution, it was also dismissed by the trial Court vide order dated 19.04.2023.

6. Mr. Ali Haider Saleem Addl. P.G argued that accused are facing trial for offence punishable under Sections 302, 324, 353, 427, 186, 34 PPC, 3/4 Explosive Substances Act read with Section 7 of ATA 1997; that prosecution has already examined 11 witnesses, yet prosecution has to examine 10 more witnesses in support of its case, but trial Court in the hasty manner has closed the prosecution’s side. It is further submitted that evidence of the remaining prosecution witnesses is essential for just decision of the case. In support of his submissions reliance is placed by him upon the case of The State vs. Muhammad Yaqoob and others (2001 SCMR 308).

7. Mr. Aftab Ahmed, counsel for respondent No.25 mainly contended that all material witnesses have already been examined by the prosecution and this Revision Application is filed to delay the proceedings.

8. Today, Mr. Ghulam Qadir Jatoi, counsel for the respondents No.1, 4 and 23 is called absent without intimation.

9. Heard arguments and perused the record.

10. According to second part of Section 540 Cr.P.C, trial Court is bound to examine any person as a witness, if his evidence appears to be essential for just decision of the case irrespective of the fact that any party had requested for it or not. This legal proposition has been exhaustively explained/clarified in the case of Muhammad Azam vs. Muhammad Iqbal and others (PLD 1984 S.C 95). In the present case learned trial Judge closed the prosecution side without inquiry as to why witnesses were not appearing before the trial Court. It is pointed out by learned Addl. P.G that evidence of remaining is essential for just decision of the case. Alleged offence is heinous in nature. Therefore, impugned orders are set aside. Prosecution is directed to produce the remaining witnesses before the trial Court without loss of time. In case prosecution failed to produce its witnesses, trial Court would be at liberty to adopt coercive measures against the prosecution witnesses.

10. Instant Revision Application is allowed in the above terms.

JUDGE

WASIM PS