1994 P Cr (PLP)

Ss. 540 & 439

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/11

Re-examination of a witness

Application for examination of the abductee as a Court-witness under S.540, Cr.P.C. smacked of mala fides

Re-examination of the said witness did not appear to be essential for a just decision of the case, rather it could promote the interests of the accused who, prima facie, had taken the law in his own hands, re-abducted the most important prosecution witness and presumably succeeded to win her over-- Revision petition was dismissed in circumstances. Talib H. Rizvi for Petitioner. Syed Fazal Hussain Jafri for the State. Sohrab Aslam for the Complainant. . Date of hearing: 30th January, 1994. The petitioners seek revision of the order, dated 29-7-1993 passed by the learned Additional Sessions Judge, whereby their application for summoning Mst. Robins the alleged abductee as a Court-witness under section 540 of the Cr.P.C. was dismissed.

2. The petitioners learned counsel submits that the trial Court had ample authority under section 540 of the Cr.P.C. to summon any person and re-examine him though already examined. He further submits that where re-examination of a witness appears to be essential for a just decision of the case then it is mandatory to recall him. According to him the impugned order is arbitrary and shall cause serious prejudice to the petitioners both of whom are happily living as husband and wife and have been blessed with a child. The learned State counsel agreed that the trial Court had powers to re-examine a witness though already examined and did not oppose the prayer made in revision petition. However, the learned counsel for the complainant seriously opposed the revision petition and urged that some important facts have been suppressed which have a direct bearing on the case. He pointed out that Mst. Robina, the abductee was examined in the trial Court as P.W.6 on 22-4-1992 and she fully supported the prosecution case. Thereafter, Liaquat Ali petitioner re-abducted her on 15-11-1992 whereupon another case was registered against him vide F.I.R. No.625/92. He added that the application for re-examining the abductee was mala fide and was rightly dismissed by the trial Court. He further submitted that Mst. Robins was originally abducted by Liaquat Ali petitioner No.1 in June, 1991 and after recovery, her statement was recorded by a Magistrate on 11-8-1991 in which she fully supported the prosecution story. Therefore, the alleged Nikah of the petitioners said to have been performed on 6-8-1991 does not absolve petitioner No.1 of his criminal liability. Lastly he submitted that the accused/petitioner No.1 may apply to the Court for examining Mst. Robins as a defence witness. In reply the petitioners' learned counsel pointed out that as regards second case of abduction, the petitioners had filed Writ Petition No.11613 of 1992 for quashment of the F.I.R. which was dismissed on 31-10-1993 with the observation that the petitioners could apply to the trial Court for acquittal under section 265/K of the Cr.P.C.

3. There is considerable force in the arguments of the learned counsel for the complainant. The fact that Mst. Robins was re-abducted and another criminal case was registered against Liaquat Ali petitioner No.l has not been mentioned in the revision petition. This per se is sufficient to disentitle the petitioners to the discretionary relief under section 439 of the Cr.P.C. The abductee had once made a statement against Liaquat Ali petitioner No.1 on 11-8-1991 when she was examined by a Magistrate under section 164 of the Cr.P.C. The said Magistrate appeared before the trial Court as P.W.12 and proved that the statement of the abductee was recorded by him in the presence of Liaquat Ali petitioner No.1 who was even given an opportunity to cross-examine her. Thereafter, the abductee made a detailed statement before the trial Court as P.W.6 and fully supported the prosecution case. It appears that Liaquat Ali petitioner No.l anticipated his conviction for an offence under section 11 of the Ordinance VII of 1979 and re-abducted Mst. Robins whereupon the second criminal case was registered against him vide F.I.R. 625/92. The application for examining Mst. Robins as a Court-witness under section 540 of the Cr.P.C. smacks of mala fides. The prayer for her re-examination does not appear to be essential for a just decision of the case, rather it would promote the interests of an accused who, prima facie, has taken the law in his own hands, re-abducted the most important prosecution witness and presumably succeeded to win her over. The mere fact that the petitioners have got a baby is hardly sufficient to entitle them to any indulgence, in view of the facts and circumstances of the case.

4. For the foregoing discussion, 1 do-not find any merit in this petition which is dismissed. N.H.Q./L-60/L Petition dismissed.