1. This is an application under sections 436, 439 Cr.P.C. Read with Section 561-A Cr.P.C. Whereby the applicant has impugned the order of the Session Judge and F.E.R. Tribunal, South Karachi dated 12- 7-88 whereby the learned Trial Judge was pleased to dismiss the application made by the applicant under section 540 Cr.P.C.
2. Briefly, the facts giving rise to the present application are that the applicant alongwith other co- accused is facing trial for violation of provisions of section 12 of F.E.R. Act, 1947, persaunt to an F.I.R.
3. No. 90/85 lodged on 18-12--1985 by Director, Exchange Control Department, State Bank of Pakistan against the applicant and others. The matter was investigated by S.I. Muqtada Hussain Zaidi of F.I.A.
4. S.B.C., Karachi. The applicant and the co-accused were challaned and a formal charge was framed against them under section 23 for violation of section 12 F.E.R. Act, 1947. The applicant and the co-accused did not plead guilty. The prosecution in support of its case produced the evidence and examined P.W.1 Ikram A.I, P.W.2 Zainul Abidin, P.W.3 Mohammad Anis, P.W.4 Abdul Ahad Siddiqui, P.W. 5 Zulfiqar Ahmed Shamsi and P.W.6 Muqtada Hussain Zaidi. On 19-9-1987 the accused persons were examined under section 342 Cr.P.C. And the case was set for judgment by the triad Court. On 11-7-88 the Advocate for the accused moved an application under section 540 with a request to summon four witnesses named in the application which was argued by the learned counsel for the parties and the impugned order dated 12-7-88 was passed against which order the present application has been directed.
5. Mr. I. A. Hashmi has appeared on behalf of the applicant. While pressing the application it is contended by him that in the facts and circumstances of the case it was expedient in the interest of justice for the purpose of discovery of truth to arrive at the just decision of case that the witnesses named in the application should have been examined. He has further argued that right from the beginning the plea of the applicant /accused was that shipment had not taken place, therefore the question of repatriation did not arise. During the arguments the learned counsel made reference to the evidence on record and urged that the prosecution did not produce the evidence with regard to the shipment. I have been taken through the evidence produced by the counsel for both the parties in the trial Court. From the evidence of Ikram A.I who is the Assistant Control Officer of State Bank of Pakistan it appears that he had stated that `E' Forms Ex.13 and Ex.14 did not bear seal or signature of the Customs Authorities certifying examination of shipment of goods and both the forms did not accompany the shipping bills. Likewise P.W.2 Zainul Abidin stated in his evidence that the bank did not make effort to obtain certificates from the Shipping Company to find out whether the consignment was sent. According to him the Shipping Bill is the authenticated document to show the actual shipment of the goods. P.W. 3 Mohammad Anis, an officer in the Export Department of United Bank Limited, Karachi stated that he cannot say whether shipment was actually made or not by the accused. P.W.4 Abdul Ahad Siddiqui working as an officer in Export Department of the State Bank has denied having knowledge whether the shipment took place against the 'E' Form or not.
6. It has been vehemently argued by the learned counsel that the plea raised by the applicant in the trial Court right from the beginning was that the shipment of articles of the goods was not made, as such to find out the truth and to arrive at the correct decision it is necessary to examine the witnesses the failure of which would prejudice the applicant/accused. This factual aspect has not been controverted by Mr: A.K. Jatoi, learned counsel appearing for the State and, therefore, I Find sufficient substance in the arguments of the learned counsel for the applicant who in, support of his contentions placed reliance on the cases of Abdul Ghafoor v. Te State (PLD 1983 Lahore 139) and Rashid Ahmed v. The State (PLD 1971 S.C: 709). In the case of Abdul Ghafoor v. The State it has been held that in order to make discovery of truth for arriving at just decision the Court, ought to make maximum endeavour. True state of facts not coming to knowledge of Court, the power to secure the ends of juice must be exercised for discovery of truth. Also in the case of Rashid Ahmed v. He State the Honourable Judges of the Supreme Court have held:-- "A criminal Court is fully within its rights in receiving fresh evidence even after both the sides have closed their evidence and the case is adjourned for judgment for, till then case is still pending." In the same decision it is further observed:-- "It is an elementary principle of administration of criminal justice that the accused should be afforded every reasonable opportunity of rebutting the evidence which goes against him."
7. For the reasons stated above, the impugned order dated 12-7-1988 is set aside and the Cr. Revision No. 31/1988 is allowed. The. R &-P of the case may be sent back to the concerned Court which is directed to expeditiously dispose of the case within three months from the date of communication of this judgment.
8. M.Z.S./M-765/K