' MUHAMMAD SADIQ LEGHARI, J.---The facts leading to this order are that applicant Mst. Bibi Khatoon filed a direct complaint against respondents Gul Dad Khan and Gul Akbar for offences under sections 420/406/468/392/506-B, P.P.C. After preliminary inquiry the complaint was brought on record file and B.Ws. Issued against the respondents on 29-3-2003.
2. After appearing before the trial Court the respondents furnished surety. On 29-9-2003 copies of the complaint and other documents were supplied to them under section 265-C, Cr.P.C. On 4-10- 2003 charge was read over to them. As they pleaded not guilty, the complainant/ applicant was directed to produce the evidence.
3. On 18-10-2003 complainant's examination-in-chief was recorded. Her cross-examination was however, reserved for want of documents. The cross-examination was completed on 8-4-2004 and the case fixed for recording the evidence of the remaining witnesses on 6-5-2004.
4. On that day the witnesses did not attend. The learned trial Court i.e. Vth Additional Sessions Judge, Karachi-South (Mrs. Sher Bano) closed the prosecution/ complainant side for further evidence. The complainant then filed an application under section 540, Cr.P.C. For recalling the order, dated 6-5-2004 and examining her witnesses but the learned Additional Sessions Judge dismissed that application vide order, dated 30-8-2004. That order has been assailed through present revision application.
5. Applicant's learned counsel has contended that the scheme of the law is the trial of the accused for the offences and ascertaining truth but the learned trial Court acted mechanically without realizing the scheme and object of the law and throttled the case of complainant by closing her side. According to the learned counsel the order by which the side of the complainant was closed and then her application under section 540, Cr.P.C. Dismissed are arbitrary and against the entire scheme of the law which favours the just decision.
6. Mr. M. Janan Khattak, Advocate appearing for the respondents has defended the order stating that sufficient opportunity was given to the applicant/complainant to produce the evidence but she failed to avail it of therefore the learned trial Court was fully justified in closing her side. He further contended that this Court, while deciding Revision Application No.86 of 2003 had issued directions to the learned trial Court for deciding the case within two months therefore the order passed by the learned trial Court was fully warranted.
7. I must express at the very outset that the scheme of the law is to try the accused for the offences allegedly committed by him/her. Trial means a trial in real sense and not in a mechanical manner.
Section 265-F, Cr.P.C. Relates to the recording of evidence if the accused does not plead guilty or is not convicted on his plea. It will be proper to reproduce the provisions of this section for correct appreciation of the contentions advanced by the learned counsel. It reads as under:-- "(265-F). Evidence for prosecution.--(1) If the accused does not plead guilty or the Court in its discretion does not convict him on his plea, the Court shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution: ' Provided that the Court shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.
(2) The Court shall ascertain from the public prosecutor or, as the case may be, from the complainant, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it.
(3) The Court may refuse to summon any such witness, if it is of opinion that such witness is being called for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by the Court in writing.
(4) When the examination of the witness of the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence.
(5) If the accused puts in any written statement, the Court shall file it with the record.
(6) If the accused, or anyone of several accused, says that he means to adduce evidence, the Court shall call on the accused to enter on his defence and produce his evidence.
(7) If the accused, or anyone or several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice such ground shall be recorded by the Court in writing.
8. Deep examination of the provisions leads to the clear conclusion that the object of the law is real trial for the offences allegedly committed by the accused. Subsection (1) speaks of taking of such evidence, which may be produced in support of the prosecution. The direction of the law does not stop here. Subsection (2) requires the Court further to ascertain from the public prosecutor or from the complainant as the case may be, the names of any person likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution and then summon such persons for giving evidence before it.
9. Section 540, Cr.P.C. Confers additional powers upon the Court in that area. It reads as under:-- ' Section 540: "Power to summon material witness or examine persons present.--Any Court may, at any inquiry, trial or other proceeding 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."
10. A bare look at the section gives out that if on the facts and circumstances of a particular case it appears essential to the Court for summoning of additional evidence or recalling and re- examining any person already examined for the just decision of the case then it is obligatory upon the. Court to examine such evidence ignoring the objections from any side. The pronouncement of the Hon'ble Supreme Court in case of Muhammad Yaqoob and other reported in 2001 SCM R 308 is clear on the point.
11. The exceptions to the above requirement are also available. The Courts are empowered to refuse from calling and examining any person or witness when they consider the evidence of such persons/ witnesses immaterial or unnecessary in the facts and circumstances of the case. They can turn down the request for summoning the witness/evidence if the purpose for getting them summoned is vexatious or to delay or defeat the ends of justice. Subsection (3) of section 265-A, Cr.P.C. Provides in that respect. It deserves to be made clear that the exceptions too are for securing the ends of justice and not for thwarting the process of law.
12. No doubt the trial of accused is to be concluded without delay but that right cannot supersede the object of trial which is nothing but to find out the truth to do justice. For that reason the legislature did not prescribe time limit for prosecution to conclude their side nor the superior Court D have given any hard and fast time line in that respect. Many factors including the pendency of cases in the Courts, standard of the performance of the agencies responsible of serving/executing the process issued by the Courts, attitude of the Advocates and the arrangements for the production of the prisoners from the jails are to be kept in view while conducting the trial and before thinking of closing the sides.. Closing of sides in the criminal trials without just reasons highlighted in preceding paras. Is highly irrational and a harsh order. Such a practice shall shake the confidence of the citizens in the judicial system. Also the deterrence of the law shall be affected. In fact the current situation is demanding the evolvement of a mechanism ensuring the speedy trial and expeditious decisions of the criminal cases. Closing of the sides and throatling the cases is not the solution.
13. It is true that this Court had issued directions to the trial Court for concluding the trial within particular period but the directions were for proceedings with the trial and concluding them in accordance with law. They never meant to conclude the case without real trial and against the entire scheme of the law and the object behind the establishment of the judicial institutions.
14. In view of the above, the orders passed by the learned Vth Additional Sessions Judge, Karachi (South) are totally illegal and against the entire scheme of the law. They are hereby set aside. The Additional Sessions Judge should start the proceedings of the case from the stage where she closed the side of the prosecution and decide the case in accordance with law. With this order the revision application is accepted. Let the copy of this order be sent to the Registrar for circulation among the Judicial Officers performing in the Province.