SAJJAD AHMED SIPRA, J.- Faruq Aslam, petitioner, the complainant in a case registered vide FIR No. 307/90 dated 28-6-1990, under Section 17 of the Offence against Property (Enforcement of Hudood)
Ordinance, 1979, at Police Station Nawan Kot, Lahore, has preferred this revision petition against the order dated 29-10-1991, whereby Mr. Gulshad Hassan Alvi, Additional Sessions Judge, Lahore, has ordered for re-summoning of PW.1 to PWA.
2. The case in question was pending trial in the Court of Mr. Faruq Hussain, Additional Sessions Judge, Lahore. On 17-2-1991, the learned Judge examined the petitioner PW.1, Zafar Hussain PW.2, Mst. Nighat PW.3, and on the request of the learned counsel for the accused/respondents, the cross- examination of these witnesses was reserved. On 24-3-1991 the said witnesses were duly cross-examined and the statement of PWA, Mumtaz Hussain Zahid, M.I.C, was recorded. On 4-4-91 Mumtaz Begum was given up by the learned Deputy District Attorney. On 10-4-1991 Liaqat Ali constable was examined as PW.5 and Muhammad Siddique S.L as PW.6. On 28-4-1991, Mr. Faruq Hussain, Additional Sessions Judge, Lahore, reportedly died and this case was entrusted to the Court of Mr. Gulshad Hassan Alvi, Additional Sessions Judge, who has summoned PW.1, PW.2 and PW.3 for the purposes of cross-examination and PWA for recording his statement afresh, because the Urdu record regarding cross-examination of PW.1 to PW.3 and the statement of PWA does not bear the signatures of the then Presiding Officer.
3. Notices to the accused/respondents were also issued and on appearance they had not denied the fact that they availed the opportunity of cross- examination.
4. With the assistance of the learned Law Officer, and the learned counsel for the petitioner and the respondents the record has been perused, and if stands established that PW.1, PW.2 and PW.3 were examined on 17-2-1991 and the cross-examination of PW.1 to PW.3 was completed by the learned defence counsel, and the same was recorded in continuation of the statements recorded on 17-2- 1991. The English record shows that the statements have been duly signed by the Presiding Officer, but some how he failed to sign the cross-examination of PW.1 to PW.3 and the statement of PWA recorded on 24-3-1991, in the Urdu record. The proceedings conducted on 4-4-1991 and 10-4-1991 had been signed by the Presiding Officer in both the records. Just through sheer inadvertence the Urdu record of cross-examination and the statement of PWA, recorded on 24-3- 1991, could not be signed by the Presiding Officer.
5. In fact the learned Additional Sessions Judge (since dead) had acted in accordance with the provisions of Section 357 Cr.P.C, and signed the statement which finds verification from his orders in the Order Sheet dated 17-2-1991 and 24-3-1991, arid also from the fact that the English record of the statements has been signed by the said Presiding Officer, and thus record was prepared in accordance with the requirements of Section 356 Cr.P.C. The omission in not signing the Urdu record prepared on 24-3-1991, is a irregularity curable under Section 537 Cr.P.C., and no prejudice has been caused to the accused/respondents nor have they made such a claim. Furthermore, in Dilbar vs. The State (PLD 1986 Karachi 385), it has been held that the opportunity of cross- examination cannot be repeated without very valid reasons; and that the court could only summon and examine or recall or re-examine any such person if his evidence appears to be essential to the just decision of the case. It needs to be observed here that it was not the case of the respondents that English record does not contain a full and, an accurate account of the testimony in question therefore, as held in Abdul Rehman vs. The King-Emperor (I.L.R. ,5 Rang. 53), the irregularity complained of may be considered mere technical irregularity, curable under Section 537 Cr.P.C., as in this case too, it had been observed that the. Evidence of the witnesses was recorded in full and that there was no suggestion that the record had not contained full and accurate account of the depositions, as in the instant case as stated above.
6. Therefore, in pursuance to what has been stated above, and as the accused have already availed the opportunity of cross-examination in question and as no prejudice has been caused to the accused because of the omission of the Urdu record of the said cross-examination not having been signed by the learned trial Judge, it is hereby held that no case was made out for the said witnesses to be re-summoned for the purposes of cross-examination once again. Therefore, the impugned order dated 29.10.1991 is not in accordance with law, under the facts and circumstances of the case. In this respect, further support is sought from The State vs. Mehmud Ali (1972 P.Cr.L.J.
1020), wherein it was held that the non- observance of provision of Section 356 Cr.P.C., not having caused any prejudice to the accused, was mere irregularity and thus curable under the provisions of Section 537 Cr.P.C. It was further held therein that such an irregularity shall not cause failure of justice and that the statements recorded could be made use of for all the purposes for which such statements are necessary. In this respect further reliance was placed on Ch. Khurshid Ahmad Chauhan vs. The State (1976 P.Cr.L.J. 342), wherein the learned trial Court's order, resummoning the witnesses under Section 540 Cr.P.C, to record their statements afresh, as earlier the learned trial Court had recorded their statements in English only, was set aside with the observation that the re- examination of such witnesses would cause prejudice.
7. Resultantly, the present criminal revision petition is hereby allowed and the impugned order dated 29-10-1991 is hereby set aside. The learned trial Judge is directed to proceed with the case from the stage where if was entrusted to him, with the further direction that he shall conclude the trial in question expeditiously.