2007 PLP 1458 (MLD)

Laws Cited

Representation

• ----Ss. 265-A & 540---Penal Code (XLV of 1860), S.302---Examination of witnesses without procuring attendance of Public Prosecutor---Re examination of witnesses---Application for---Main contention of counsel for applicant was that two Doctors had been examined by the Trial Court without procuring attendance of Public Prosecutor .and that the Trial Court had itself acted as Public Prosecutor---Matter being a murder case, presence of the Public Prosecutor was very necessary while recording statements of witnesses and if Public Prosecutor was not available with the Court it was the duty of the Presiding Officer to borrow other Public Prosecutor of Sessions Court, but that had not been done---Assistant Advocate General appearing for the State, had conceded with the contentions raised by the counsel for applicant and had given no objection, if revision was allowed and the Trial Court was directed to summon said Doctors for examination/re-examination---Trial Court had not taken into consideration the ingredients of S.265-A, Cr, P. C. , particularly when it was a murder case---Impugned order was set aside, Trial Court was directed to summon both said Doctors and they would be recalled and. re-examined with the assistance of Public Prosecutor.
• The main contention of Mr. Nawab Mirza advocate, who is representing the applicant in the aforementioned Criminal Revision Application is that the Dr. Shahab Junejo and Dr. Zahid Hussain have been examined by the trial Court without procurnig attendance of the public prosecutor and the learned trial Court itself has acted as public prosecutor and has drawn my attention on the depositions-.of Dr. Shahab Junejo acid Dr. Zahid Hussain.
• On 8-12-2000 this Court had ordered for call of R & P from the concerned Court with regard to veracity of the above statements. The trial Court submitted that report, dated 15-12-2000 and has denied the allegations levelled by the advocate for the applicant and submitted that Mr. Nawab Mirza, advocate has made false statement and misguided this Court. Be that as it may, I have gone through the depositions of the P.Ws. namely and respectively Dr. Shahab Junejo and Dr. Zahid Hussain. As far as Dr. Shahab is concerned, nowhere it is evident that the examination-in-chief of Dr. Shahab Junejo has been recorded in presence of public prosecutor, although, in the statement of Dr. Zahid Hussain the examination-in-chief is to P.P. for the State but in the statement of Dr. Shahab Junejo nowhere it has been cleared that the examination-in-chief has been done with the assistance of the public prosecutor. Since it is a murder case and the presence of the public .prosecutor is very necessary while recording statements of the witnesses and if public prosecutor was not available with the concerned Court, it was the duty of the Presiding Officer to borrow another DDA from D.A. of the Sessions Court but the statement of Dr. Shahab Junejo and his examination-in-chief is .without, assistance, of the public prosecutor.
• On the other hand Mr. Mehmood A. Qureshi, advocate for the accused has submitted that what harm .has been done to the applicant if services of public prosecutor have not been procured by the trial Court while recording evidence. of Dr. Shahab and has placed reliance on 1997 PCr.LJ 1553 but the facts of the case cited by the learned counsel are distinguishable from the present case because in the -case cited by the Learned counsel for the accused the immaterial witness was examined but in the present case Dr. Shahab is very material witness.
• Mr. Arshad Lodhi, Assistant Advocate General, appearing for the State has conceded with the contentions raised by Mr. Nawab Mirza, advocate for the applicant and has given no objection, if the revision is allowed and the trial Court is directed to summon the doctors namely and respectively Dr. Shahab Junejo and Dr, Irshad for examination/re examination.

Headnotes / Summary

Judgment & Decree