ORDER SHEET
IN
THE HIGH COURT OF SINDH, KARACHI
Criminal Revision Applications Nos.48 and 49 of 2013
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Date Order with signature(s) of Judge(s)
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1)
For Katcha Peshi.
2)
For hearing of M.A. No.1797/2013
(in Cr.R.A. No.48/2013)
3)
For hearing of M.A. No.1794/2013
(in Cr.R.A. No.49/2013)
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23.04.2013
Mr. Muhammad Riaz Abbasi,
Advocate for Applicants
Mr. Ali Haider Saleem, Asstt.
Prosecutor General Sindh
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NAIMATULLAH
PHULPOTO.--- By this
single order we will dispose of Criminal Revision Applications Nos.48 and 49 of
2013 filed by applicants/accused Iftikhar Ali and Ahsan
Mian, respectively, as the same arise out of the
order dated 11th March 2013, passed by learned Special Judge (STA)/Sessions Judge, Shaheed
Benazir Abad in STA Case Nos.07/2003 and 138/2012, whereby prayer of the
applicants/accused for consolidation of the cases viz
Case Nos.07/2013 and 138/2013, arising out of F.I.R.
No.104/1999 under section 302 PPC registered at Police Station Qazi Ahmed and prayer to proceed with the cases afresh were
declined by the learned trial Court.
For
the sake of convenience and to understand the factual position, the relevant
portion of the order of the learned trial Court dated 11.03.2013 is reproduced
as under:
The perusal of record further reveals that an applicant/accused
Ahsan Mian against whom
N.B.W. has been issued by this court due to his abscondance
filed Criminal Revision No.119 of 2012, before the Honourable High Court of Sindh
against the order of this court. Consequence whereof, the Honourable High Court
of Sindh has been pleased to set aside the order of this Court and
applicant/accused was allowed to attend trial proceedings on same surety. Thus,
applicant/accused put his appearance before this court on 21.06.2012 and for
evidence purpose process, against the remaining PWs has been issued so that
trial may be concluded as per directives of the Honourable Supreme Court of
Pakistan. It is strange to note that both the applicants have now filed these
applications under section 239 Cr.PC praying therein that their cases may be
amalgamated and proceed with the cases afresh.
I am no persuaded to convince myself with the contention of the learned counsel
for the applicant/accused as all most evidence of the PWs so far
been brought on record has been recorded in presence of both the
applicants/accused. Their respective counsel had also cross-examined to said PWs at length. Only purpose behind bifurcation of the
case of the applicant/accused Ahsan Mian during his abscondance
period from the case of applicant/accused in attendance namely Iftikhar Ahmed
was to initiate proceedings under sections 87/88 Cr.PC so also record evidence
of the remaining PWs in presence of applicant/accused who
was in attendance at that time. In such situation question of amalgamation of
the cases and recalling prosecution witnesses who had already been examined in
presence of both the applicants and their counsel, does not arise. No prejudice
appears to have been caused to any of applicant/accused. Rather filing of these
applications at the time when trial is likely to be concluded, appears to be
delaying tactics in order to frustrate the directives of the Honourable Supreme
Court of Pakistan, issued to this Court, vide letter No..(i)267 of 2011, dated
24.09.2011, (ii) 267 of 2011, dated 25.02.2012, (iii) 267 of 2012, dated
16.6.2012 (iv) 267 of 2012, dated 30.07.2012 and (v) 267 of 2012, dated
08.09.2012, to conclude the trial expeditiously.
10. It is worthwhile to
mention here that in this case only few prosecution witnesses are yet to be
examined to conclude the trial. Their evidence would be recorded in presence of
both the applicants/accused and judgment is yet to be handed down, therefore,
these applications in terms of section 239 Cr.PC are without any
substance.
Learned advocate for the applicants
mainly contended that trial Court had wrongly bifurcated the case of the
applicant Ahsan Mian, the
persons accused of same offence are to be charged and tried together under provisions
of Section 239 Cr.PC. The applicants/accused remained absent on one date of
hearing and the trial Court, in hasty manner, bifurcated the cases of the
applicants/accused from the case of co-accused on 31.03.2012. Lastly, it is
argued that trial Court has committed illegality.
Learned
A.P.G. strongly opposed the revisions and argued that the applicant/accused Ahsan Mian had remained absent
and his case was bifurcated and case of co-accused proceeded. He further
submitted that both cases are almost complete, no prejudice would be caused to
the applicants/accused if their cases are tried separately. It is submitted
that trial Court has rightly exercised discretion.
We
have carefully heard the learned counsel for parties and perused the relevant
record.
Learned
trial court in its order
dated 31.03.2012 has observed that applicant/accused Ahsan
Mian remained absent and NBWs were issued against him.
His case was bifurcated from the case of co-accused and prosecution witnesses
were examined during the trial of co-accused, to avoid delay in conclusion of
trial. Applicant/accused, namely Ahsan Mian subsequently joined the trial and his case proceeded
separately and evidence of 13 PWs during the trail of co-accused and 15 PWs
during trial of present applicant/accused have been recorded and all the PWs
were cross-examined at length by their respective counsel. Learned trial Court
has rightly observed that due to act of applicant/accused, namely, Ahsan Mian of his deliberate
absence, case was bifurcated. Inconvenience would be caused to the prosecution
witnesses if PWs are recalled and both cases are amalgamated. Delay in
conclusion of trial would also be caused. Moreover, learned advocate for the
applicants could not point out any prejudice, which has been caused to the
applicants/accused by separate trials, court is not bound in every case to try
offence or the persons jointly. In this regard reliance can be placed upon the
case of Noor Ahmed versus The State (PLD 1964 Supreme Court 120), in which it
has been observed as under:
Even though sections 235 and 239 of the Criminal
Procedure Code give a direction to the Court to try certain persons and/or
offences jointly, yet there are certain considerations which are more
fundamental than merely the convenience of the proceeding or trial which must
be kept in view when deciding as to whether the discretion should in a given
case be exercised or not. In a criminal trial, as we have already observed, it
is a fundamental principle that the trial of an accused person should be
conducted with the utmost fairness and anything which is likely to cause any
serious embarrassment to him in the conduct of his defence should be
avoided.
For
the above stated reasons, the impugned order did not suffer from any material
illegality or irregularity. As such, same is maintained. Consequently, revision
applications are without merit, the same are dismissed.
JUDGE
JUDGE
Gulsher/PA