' This is a revision petition by Phali Gul, complainant/petitioner against the order of the learned Sessions Judge, Nowshera, dated 21-2-1994 whereby the examination of a police officer, who had only arrested the accused had been dispensed with upon the application of the defence counsel admitting the said arrest.
2. It appears that Nasirul Mulk Bangash, the then S.H.O., Police Station, Nowshera KaIan, had only affected the arrest of Shamsul Arifin accused-respondent in a case registered against him under section 302/34, P.P.C. Vide F.I.R. No,469 dated 25-3-1992. The trial was being delayed due to nonappearance of the aforesaid police officer. Looking to the likelihood of the conclusion of the trial being further delayed due to the failure of the aforesaid police officer to appear in the Court, the learned defence counsel put in an application admitting therein the factum of arrest of the accused-respondent by the said officer. Thereupon, the learned Sessions Judge, who was seized of the trial, while acceding to the prayer of the accused-respondent, dispensed with the attendance of the said police officer and adjourned the case for the examination of the accused under section 342, Cr.P.C.
3. Mian Muhammad Murad Kakakhel, learned counsel for the complainant/petitioner, assailed the aforesaid order of dispensing with the appearance of the police officer and contended that the learned Sessions Judge had committed a serious illegality in abandoning Nasirul Mulk, S.H.O. Who had to depose to the factum of arrest of the accused-respondent, for, it was the duty of the prosecution to abandon a prosecution witness and that a Court conducting the trial of an accused was not legally competent to do it despite an objection by the counsel for the complainant and the Public Prosecutor to have resort to this course of action.
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4. The complainant/petitioner has not fully documented the petition particularly the photo copies of the order-sheets and that of the application filed by the defence counsel conceding therein the arrest of the accused-respondent by the said police officer and praying for dispensing with his statement in the Court. This omission per se was sufficient to refuse the admission of the revision petition to full hearing. Nonetheless, I have decided to dispose of this revision petition on its own merits.
5. It is settled proposition that omission to examine all the prosecution witnesses is no ground by itself for interference in exercise of revisional jurisdiction of the High. Court. The pivotal question falling for determination by the revisional Court is to see "whether order cannot be sustained on the material-brought on record" or "whether the impugned is perverse or foolish" and also "whether setting aside the order will be in the interest of justice keeping in view the circumstances of the case". See Sh. M. Amin v. The Superintendent of Police PLD 1960 Lahore 684. Again the High Court will interfere in revision when there is a material error in decision or in the proceedings, which means an error in decision upon facts, but "some error in law or procedure" which would have no direct bearing upon the culpability or otherwise of the accused standing trial would not be amenable to the revisional jurisdiction of this Court. It has already been observed earlier that the learned counsel for the complainant/petitioner has not been able to point out any legal infirmity in dispensing with evidence of the police officer who would have only testified to the arrest and possibly the circumstances in which the arrest of the accused affected. But if the accused- respondent has conceded to the date of his arrest by the said police officer and the circumstances in which he was arrested are not of much significance then no error in law or procedure is discernible to warrant interference in revision.
6. The impugned order was apparently passed in order to avoid any delay in concluding the trial more so when the course of action complained against in this petition would not prima facie affect the fate of the case. I respectfully subscribe to the view expressed by the late A.R. Carnelius, J.; as his Lordship then was, in M.S. Khawaja v. The State PLD 1965 SC 287 that the view that time is of essence for the competency of criminal prosecution cannot be accepted as of universal application. But at the same time, "inordinate delay, devoid of reasonable cause, resting on disinterest and inaptitude demonstrated by the prosecution, cannot be lightly ignored".
7. It was perhaps on this account that the course of action complained against and sought to be revised was pursued to conclude the trial at the earliest. This general proposition finds recognition from the provision of subsection (3) of section 265-F, Cr.P.C. Which confers on the trial Court a discretion that the Court may refuse to summon any such witness, if it is of the opinion that such witness, is being called for the purpose of vexation or delay or defeating the ends of justice albeit such ground shall be recorded by the Court in writing. The trial Court, in the instant case, although not in so many words, has recorded the reasons for pursuing the impugned course of action.
8. Be that as it may, it has not been satisfactorily established that by following the course of action impugned in this revision the complainant/petitioner or the prosecution had been adversely affected or that if the police officer, who had been abandoned, had appeared in the Court and would have testified to the factum of arrest of the accused-respondent, the case of the prosecution would have been strengthened notwithstanding the latter's concession qua his arrest on a particular date by the said police officer.
9. For the foregoing reasons, this revision petition has no substance and is accordingly dismissed in limine.