' HASNAT AHMAD KHAN, J.--- Through this criminal miscellaneous petition filed under section 561-A, Cr.P.C. The order, dated 16-6-2005 passed by learned Additional Sessions Judge, Multan, whereby, the criminal revision petition filed by the petitioner against the order, dated 14-5-2005 passed by the learned Senior Civil Judge/Judicial Magistrate, Multan, was dismissed has been challenged.
2. Brief facts of the case are that a case F.I.R. No,155 of 1997 under sections 397/324/337-A(i)/337- A(ii)/337-F(i), P.P.C. Was registered with Police Station Delhi Gate, Multan. Through a supplementary statement, the present petitioner was involved in the said case. After completion of the investigation, the challan was submitted before the learned trial Court. After framing of the charge, learned trial Court proceeded to record the prosecution evidence. After closure of the prosecution evidence, the petitioner/accused submitted an application under section 540, Cr.P.C. On 13-1-2005 before the learned trial Court for summoning four persons as court-witnesses. The detail of the persons who were required to be produced with the courtesy of the Court is as under:--
(i) Khadim Hussain Niazi, D.S.P. (ii) Mehboob Hassan Manika, D.S.P. Range-Crimes, Lahore. (iii)
Zaman Khan Langrial, S.P. Range Crimes Branch, Lahore.
3. According to the petitioner after the investigation, said Police Officers had declared him innocent. The complainant of the case submitted reply to said application and vehemently contested the same. In the reply it was submitted that Irfan Mehmood, D.I.-G. Crimes Branch, Lahore, had not declared the petitioner innocent and as a matter of fact, he had found him guilty. It was further submitted that calendar of the witnesses submitted with the challan did not contain the names of the said witnesses. It was further stated therein that the petitioner who was involved in so many cases of dacoity had moved said petition with the sole purpose of delaying the trial on one pretext or the other. It appears that the said application was allowed to the extent of granting permission to the petitioner to produce said witnesses as defence witnesses.
4. The petitioner produced Khadim Hussain, D.S.P., Kabirwala, as D.W.1, while Muhammad Zaman Khan, D.P.O. Lodhran, appeared as D.W.2. During the examination-in-chief, D.W.2 categorically and in unambiguous terms stated that he had never conducted the investigation of the case against the petitioner. He further submitted that he had got no concern with the investigation of said case.
Evidence of the said D.W. Shows that the claim of the petitioner that he had been found innocent during the investigation by the Police Officers was not based upon true picture. Said statement was recorded on 30-4-2005. One of the witnesses intended to be produced by the petitioner had already died. According to the learned counsel for the complainant, the petitioner was given numerous opportunities to produce Irfan Mehmood, D.I.-G., as his defence witness, but he failed to produce him.
5. The record further shows that as the petitioner had failed to produce Irfan Mehmood, D.I.-G., as his defence witness, the learned trial Court closed his right of defence vide order, dated 14-5-2005.
The said order was challenged by the petitioner through criminal revision filed before the learned Sessions Judge, Multan, but the same was dismissed in limine, vide order, dated 16-6-2005. The said order was challenged through the present petition which was admitted to regular hearing vide order, dated 29-7-2005 and the learned trial Court was restrained to announce the final judgment. Due to the restraint order, the trial against the petitioner was stuck up, which compelled the complainant to move Criminal Miscellaneous No,258/M of 2006 for recalling said stay order.
6. In support of this petition, learned counsel for the petitioner has contended that the revision petition filed by the petitioner was dismissed arbitrarily and in haste and the learned counsel for the petitioner was not given hearing while deciding the said revision petition; that the defence was not treated at par with the prosecution and defence was not given as many opportunities to produce the defence evidence, as the prosecution had been given opportunities to produce its evidence. He has further contended that the petitioner being a poor person cannot produce a person of high rank of D.I.-G. In his defence, though he has been retired from service.
7. While exercising the right of reply, learned counsel for the complainant has submitted that both the impugned orders are quite legal and no illegality has been committed by both the learned lower Courts while passing the impugned orders. He has fuirther contended that while disposing of earlier Criminal Miscellaneous No,615/M of 2004 this Court vide order, dated 25-11-2004 had directed the learned trial Court to conclude the trial within two months. Certified copy of the said order has been placed on record.
8. After hearing the arguments of both the learned counsel, I have come to the conclusion that a case was registered as back as in the year 1997 and despite expiry of period of a decade, the trial has not been concluded so far in this case. This is very shocking and of great concern. Such delays in conclusion of the cases are arousing the feelings of the general public. It appears that the defence had made it almost impossible for the trial Court to conclude the same. So much so, that order, dated 25-11-2004 passed by this Court whereby learned trial Court was directed to conclude the trial within two months had also been frustrated by the defence and instead of two months, a period of more than two years has passed, yet the trial has not been allowed to be concluded by way of adopting one device or the other. According to the learned counsel for the petitioner, the witnesses who were intended to be produced by the defence were supposed to depose about their opinion made during the investigation. It is established law that opinion of the Police Officers is not binding upon the Courts and as a matter of fact same is not even admissible in the evidence.
Nevertheless, two witnesses have already been produced in defence by the petitioner. One of them categorically denied claim of defence that he ever investigated the case or found him innocent.
Said fact shows that the purpose of producing the defence witnesses is nothing but to delay the trial. There is another reason which restrains me from interfering in the impugned orders is that when the application under section 540, Cr.P.C. Filed by the petitioner was disposed of with the condition that the above mentioned witnesses would not be called as court-witnesses and the petitioner was allowed to produce said witnesses in his defence, but said order as never challenged by him and the same attained finality and when he took the somersault and prayed that Irfan Mehmood, D.I.-G. Be summoned as court-witness, it was too late in the day. The record further shows that on 30-4-2005 the learned trial Court observed that the petitioner had been granted numerous opportunities to produce Irfan Mehmood, D.I.-G. In his defence but he had failed to do so and vide order, dated 30-4-2005 he was given last opportunity to produce said witness on his own. The petitioner did not opt to challenge said order also and allowed said orders to attain finality. The impugned order, dated 14-5-2006, whereby, the defence was closed, shows that the defence was given 14/15 opportunities to produce defence witnesses. Two of the witnesses were produced by him. One had died while the petitioner could not produce Irfan Mehmood, D.I.-G.
9. While dismissing the revision petition, learned revisional Court also did not commit any illegality.
As far as the contention of the learned counsel for the petitioner that he was not heard by the learned revisional Court, is concerned same runs against the judicial record. Presumption of correctness is attached to the judicial proceedings.
10. There is yet another reason for dismissal of the present petition, as the revisional order has been challenged through this petition filed under section 561-A, Cr.P.C. Section 439(4)(b), Cr.P.C. Clearly prohibits the exercise of the powers under section 439, Cr.P.C. By this Court against the order passed by any Sessions Judge under section 439-A, Cr.P.C. Which means that the second revision is barred by operation of law and wisdom of the Legislature which can be gathered from this provision is that purpose of enactment of this provision was to curtail the remedies. Said object of the law cannot be allowed to be circumvented through allowing.The invocation of section 561-A, Cr.P.C. As said jurisdiction is an extraordinary one, preserved only for extraordinary situations, power under the said provision must be exercised sparingly with utmost caution and only in exceptional cases and not as a matter of routine. If any case-law is required, reference is made to the case Bashir Ahmad v. Zafar-ul-Islam PLD 2004 SC 298 and Syed Gohar Ali Shah v. The State and 6 others 2000 PCr.LJ 1180.
11. The defence was given ample opportunities to produce the defence witnesses and after the consumption of 15/16 opportunities, the right of defence was closed, as the petitioner had failed to produce one of the above mentioned witnesses in his defence. As mentioned above, the intention of production of said witnesses was to bring on record, opinion of innocence qua the petitioner on record, which is neither binding on the Court nor admissible in evidence. Moreover, two of the witnesses on the same point had already been examined in his defence. No prejudice has been shown to have been caused to the petitioner. Learned counsel for the petitioner could not point out any illegality in the impugned orders. Neither any irregularity in the procedure has been pointed out by him.
12. For all the reasons mentioned above, the petition in hand being IC meritless is dismissed.
13. Before parting with the order, I would like to observe that the case being very old one, learned trial Court would conclude the trial within a month, positively after the receipt of this order.