' A reference under section 438, Cr. P. C. Has been made by the Additional Sessions Judge Lahore dated 14-10-1965 in a case titled "Mst. Arab Khatoon v. Sh. Mohammad Aslam" with the recommendation that the order of the learned Magistrate dated 24-8-1964 by which he refused to afford opportunity to the prosecution to produce further Evidence, be set aside.
2. The complaint and challan were consolidated, arising out of the same incident, by the trial Court who summoned Khan Mohammad Asghar Khan, City Inspector, Lahore, as a witness but ultimately had to dispense with his presence because he was not available. After closing the evidence of the prosecution he charged the respondent under section 448/34, P. P. C. On 7-7-1964. The prosecution felt aggrieved that an important witness like Khan Mohammad Asghar Khan was not allowed to appear before the Court due to no fault of the prosecuting agency. She filed a revision before the learned Additional Sessions Judge to this effect. The learned Additional Sessions Judge while going through the record found that in fact the learned trial Magistrate was not justified to dispense with the presence of Khan Muhammad Asghar Khan as it was only on three occasions that he could not appear because once he was away to U. S. A. And second time he was on four months leave and on one occasion, according to himself, was not available being on leave. In view of this data on the record of this case learned Additional Sessions Judge has recommended that the order of the learned Magistrate dated 24-8-1964 be set aside and trial Court be directed to afford an opportunity to examine Khan Mohammad Asghar Khan in this case.
3. I have given my anxious thought to the recommendation of the learned Additional Sessions Judge and find that this is based on good ground and is supported by the record of this case. The learned counsel appearing on behalf of the petitioner has submitted that this case should have been decided as soon as the reference was submitted before this Court and the delay of 10 years might have materially changed the alignment of the parties as well as their line of action. He has also considered it unfair that the respondent should be asked to face consequences of litigation after the lapse of such a long time. I am afraid this would not be material in this case because even if I reject the reference, the case will have to start once again from the defence stage. If this would have been a matter of retrial, I would have reluctantly allowed the same. But in the instant case, as observed above, the case is to be tried from the defence stage and if one more peshi takes place for recording evidence of Khan Mohammad Asghar Khan who is easily available as being posted as S. S. P., Multan, the trial may be concluded.
4. Therefore I accept the reference, set aside the order of the learned trial Court dated 24-8-1964, and direct it to summon and examine Khan Mohammad Asghar Khan in support of the prosecution version. However, before parting with the case I will impress upon the trial Court to give top priority to this case as it has already suffered 10 years of delay while lying in the cold storage in the some branch of this Court.