State through Muslim vs Mumtaz Ali

2013 P Cr. L J 820

[Peshawar]

Before Assadullah Khan Chamkani, J

STATE through Muslim Khan---Petitioner

Versus

MUMTAZ ALI---Respondent

Criminal Revision No.38 of 2012, decided on 4th September, 2012.

(a)Criminal Procedure Code (V of 1898)---

----S. 540---Application for summoning of abandoned witnesses, dismissal of---Abandoned witnesses being summoned at belated stage of trial---Effect---Complainant (petitioner) contended that his previous counsel had abandoned two important prosecution witnesses and now his present counsel had filed an application before Trial Court for summoning said witnesses, which had been dismissed without keeping in sight the provisions of S.540, Cr.P.C.--- Validity---Under S.540, Cr.P.C. court had ample powers to summon any witness for just decision of the case and even without any application of the parties but, in the present case, complainant's previous counsel had abandoned two prosecution witnesses and after a delay of about ten months, when statements of all prosecution witnesses were recorded and duly cross-examined by the defence, the complainant had filed present application when the case was ripe, therefore, complainant could not be allowed to examine said witnesses once abandoned by his previous counsel---Order of Trial Court was well reasoned and called for no interference---Revision petition was dismissed, in circumstances.

(b)Criminal Procedure Code (V of 1898)---

----S. 540---Power of court to summon witnesses---Scope---Under S.540, Cr.P.C. Court had ample powers to summon any witness for just decision of the case and even without any application of the parties.

Sardar Zulfiqar for Petitioner.

Respondent in person.

Date of hearing: 4th September, 2012.

JUDGMENT

ASSADULLAH KHAN CHAMKANI, J.---The petitioner being complainant of case F.I.R. No.176 dated 10-6-2011 registered under sections 302/109, P.P.C. at Police Station Kabal, Swat, has filed the instant revision petition against the order dated 16-7-2012 passed by learned Additional Sessions Judge/Izafi Zila Qazi, Kabal, vide which the application of the complainant for summoning of witnesses was rejected.

2.Learned counsel for the petitioner submitted that initially the complainant was represented by another counsel, who had abandoned two important witnesses of the prosecution namely Noor Muhammad and Muhammad Amin that when the complainant engaged another counsel on 11-7-2012 it was pointed to him that important witnesses have wrongly been abandoned by his ex-counsel, so, application for their summoning but the learned trial Court by not keeping in sight the provision of section 540, Cr.P.C. rejected his application, therefore, the impugned order is illegal and liable to be set aside.

3.I have heard learned counsel for the petitioner and gone through the record.

4.Perusal of the record would reveal that the prosecution after the commencement of trial examined as many as fourteen witnesses and thereafter closed its evidence on 29-5-2012. Perusal of file further speaks that counsel for the complainant had abandoned the above said witnesses on 26-9-2011 and in this respect his statement has been recorded and duly signed by him. No doubt, under section 540, Cr.P.C. the court has ample powers to summon any witness for just decision of the case and even without any application of the parties but in the case in hand, the complainant's counsel has abandoned P.Ws. Muhammad Amin and Noor Muhammad being private witnesses on 26-9-2011 and after slumber on 3-7-2012, after about ten months, and that too, when statements of all the prosecution witnesses including the eye-witnesses were recorded duly cross-examined by the defence counsel, the complainant has filed the instant application, therefore, at this stage of the case, when the cross-examination of the prosecution witnesses has been exposed and the case is ripe, the complainant could not be allowed to examine the said witnesses, once abandoned by his counsel.

The learned counsel for the petitioner was unable to point out any infirmity or legal error in the order of the trial court justifying interference by this court at this belated stage. The impugned order is well reasoned, according to the established principle of law and call for no interference.

Hence, this criminal revision being devoid of any merits is dismissed as such.

MWA/310/P Petition dismissed.