2007 PLP 1920 (MLD)

Criminal Miscellaneous No. 41-M of 2006 ASIF SAEED KHAN KHOSA, J.

Instead of pressing the present miscellaneous petition the learned counsel for the petitioner has requested that the main revision petition as well as Criminal Miscellaneous No. l of 2005 filed therewith may be taken up for hearing today. This miscellaneous petition is disposed of as having not been pressed.

2. Let arguments be addressed in -the main revision petition and Criminal Miscellaneous No. 1 of 2005. Criminal Revision No.-1032 of 2005

3. The petitioner is one of the accused persons in and respondent No.2 is the complainant of case F.I.R. No. 76 registered at Police Station Kotli Loharan, District Sialkot on 1-5-2001 in respect of offences under sections 302/324/337-F(i)/148/149, P.P.C. which case is presently being tried by the learned Additional Sessions Judge, Sialkot. So far statements of eight prosecution witnesses have already been recorded by the learned trial Court. On 7-9-2005 one Khalid Mahmood, Inspector had got his examination-in-chief recorded before the learned trial Court as P.W.9 and the defence had reserved its right of cross-examination of the said witness. Soon after recording of examination-in-chief of the said prosecution witness respondent No.2, the complainant, submitted an application before the learned trial Court through the learned Assistant District Attorney seeking permission to give up Khalid Mahmood, Inspector as unnecessary. On 29-11-2005 the said application submitted by respondent No.2 was allowed by the learned trial Court and the prosecution was permitted to give up Khalid Mahmood, Inspector as unnecessary. The said order passed by the learned Additional Sessions Judge, Silakot has been assailed by 'the petitioner before this Court through the present revision petition.

4. It has been argued by the learned counsel for the petitioner that there is no provision either in the Code of Criminal Procedure or in the Qanun-e-Shahadat Order, 1984 whereby a prosecution witness whose examination-in-chief has already been recorded can be allowed to be given up as unnecessary at that stage. It has also been argued that the impugned action taken by .the learned trial Court has caused serious prejudice to the petitioner's case.

5. After hearing the learned counsel for the petitioner and going through the documents appended with this petition it has been noticed by me that the examination-in-chief of Khalid Mahmood, Inspector (a copy whereof has been appended with this petition as Annexure-C) shows that during his investigation of this case he had recorded statements of some prosecution witnesses under section 161, Cr.P.C. and had then prepared and submitted an incomplete challan. The prosecution witnesses whose statements under section 161, Cr.P.C. were recorded by Khalid Mahmood, Inspector were merely formal witnesses and in any case giving up of Khalid Mahmood, hnspector by the .prosecution may prejudice the prosecution, if at all, but the same is not likely to prejudice the defence in any substantial manner, if at all. This is probably why the petitioner's co-accused have not even bothered to join the petitioner in challenging the order, dated 29-11-2005 passed by the learned trial Court.

6. Apart from what has been observed above the impugned action taken by the learned trial Court appears to be merely an irregularity, if at all, in the mode or the trial, which appears to be curable under section 537, Cr.P.C. and, at any rate, such an irregularity has not been found by me to be prejudicial to the petitioner's case in any significant or substantial manner. The petitioner's trial before the learned trial Court is already at an advanced stage. It appears that the present challenge has been thrown by the petitioner to the impugned order only to delay conclusion of his trial.

7. For what has been observed above do occasion has been found by me for interference in the matter through the present revision petition and the same is, therefore, dismissed in limine. Criminal Miscellaneous No. 1 of 2005.

8. As the main revision petition has been dismissed by this Court in limine today, therefore, the present miscellaneous petition seeking-interim relief has lost its relevance. Dismissed. N.H:Q./F-4/L Petitions dismisse