' This revision petition is directed against the order dated 8-11-1992 passed by the learned IIIrd Additional Sessions Judge, Central, Karachi, whereby the application moved by the petitioner for recalling four witnesses (1) Mst. Zaitoon Begum, (2) Abdul Rahman, (3) Abdul Wahid and (4) Raghib Hussain for further cross-examination was rejected.
2. The petitioner and others are facing trial for offence under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, before the learned IIIrd Additional Sessions Judge, Central Karachi. On 30-8-1992 charge for the offence was framed against them but they did not plead guilty to it and claimed trial. On 17-9-1992, P.W. 1 Raghib Hussain was examined and case was adjourned to 8-10-1992. On this date P.W.2 Mst. Zaitoon, P.W.3 Abdul Wahid and P:W.4 Abdul Rahman were examined and case was adjourned to 25-10-1992. On this date P.W.5 Mustqeem Qureshi and Hanif Hashim, P.C. 1758 were examined. However, on this day the learned counsel for the petitioner/accused moved application under section 540, Cr.P.C. Before the trial Court for recalling the abovementioned four witnesses for further cross-examination. After hearing the arguments of the parties the learned Judge dismissed the application. The context of the application and order passed thereon are reproduced as under:-- "(1) That on 8-10-1992, case was fixed for evidence of prosecution witnesses and the following witnesses were examined:--
(1) Mst. Zaitoon Begum wife of Nasiruddin.
(2) Abdul Rahman son of Abdul Majeed.
(3) Abdul Wahid son of Muhammad Sokha.
(4) Raghib Hussain.
(2) That after examination of the witnesses the side was closed by this Hon'ble Court and opportunity was given to the accused for cross-examination.
(3) That undersigned counsel was busy in some other Courts and Junior Partner and Court clerk were appeared twice before this Hon'ble Court and requested for time but since 11-00 a.m. The custody has not come and requested for date. As such the undersigned was unable to appear after 11-00 a.m. Before this Hon'ble Court which accepted orally by this Honourable Court.
(4) That but unfortunately this Honourable Court has examined the above important witnesses.
(5) That it is therefore prayed that this Honourable Court be pleased to recall the above witnesses for cross-examination whom are an important for the defence point of view and accused is likely to be prejudiced in his defence unless they recall and cross-examined by defence counsel.
' That the accused seriously prejudiced if the witness dated 17-9-1992 and 8-10-1992 are not resummoned.
' It is not intention of the accused to delay the trial."
' Heard the learned counsel for the defence and A.P.P.
' On perusal of the record I find that on the date of hearing at the time of examination of this witness, the counsel for the accused remained absent and the accused was given opportunity to cross-examine the witnesses and he cross-examined them. Apart from this the counsel has not disclosed the number of the cases and in which Court remained busy. Therefore I do not see any merit in this application and the same is hereby dismissed."
3. The abovesaid order has been challenged before this Court in this revision petition. Sardar Muhammad Ishaque, Advocate, appeared for the petitioner and Mr. J.M. Hayat Qureshi, Advocate, appeared for the State.
4. It may be observed that the learned trial Court dismissed the application of the petitioner on the ground that the learned counsel had not disclosed the number of the cases and the Court where he remained busy on the crucial date. The same position exists before this Court also. The affidavit filed by the same counsel before this Court is also silent in that respect. It would be useful to reproduce the same. It reads:-- "(1) That I am the Advocate for accused/petitioner in the trial Court and I informed the trial Court about my pre-occupation on 8-10-1992 and further my clerk had also apprised the Honourable Court about my pre-occupation in another Court.
(2) That I was helpless to attend the Court at the time of evidence of P.Ws. And hence I failed to cross-examine the witnesses.
(3) That the petitioner was highly prejudiced as there was no cross-examination by me in the above matter and the possibility of sentence and conviction is apparent due to aforesaid lapse and flaw on my part.
(4) That whatever stated above is true and correct." Thus, the reasons given by the learned trial Court stand confirmed.
5. Besides it may be observed that P.W.1, Raghib Hussain was examined on 17-9-1992. The learned counsel for the petitioner/accused before the trial Court has not given reason for his absence on that date. On the contrary his application reflects that he was also examined on 8-10-1992. Thus there exists no reason for recalling the witnesses for further cross-examination. P.W. 4 Abdul Rahman has not implicated the petitioner by not identifying him. Evidence of P.W. 3 Abdul Wahid is scanty. P.W.5 Mustaqeem Qureshi has been examined on 25-10-1992. He did not support the prosecution. It is, therefore, a case of tampering with the evidence obviously.
6. Further perusal of the record shows that other witnesses are not being secured in spite of efforts.
Allowing this application would protract the proceedings.
7. In such view of fact I am inclined to observe that the trial Court was justified in not exercising its discretion to recall the witnesses for further cross-examination. I also see no reason to exercise my revisional jurisdiction in aid of the petitioner.
8. Resultantly the application stands dismissed. The R&P of the case be returned immediately to the learned trial Court for proceeding with the case.