1984 P Cr (PLP)

(The quotation is from the memo. of the Revision Application). The above order was passed by Supreme Court on 26th January, 1983 but I am informed that thereafter no evidence has yet been recorded although a charge has been framed. When this case came up for hearing before Vth Additional Sessions Judge, Karachi on 5th November, 1983 an application' was made by the Advocates for the accused persons requesting the Court to call the complainant for evidence as perhaps the predecessor Judge had ordered on 15th August, 1983. Mr. Amir Ahmed Khan informs me that the comp lainant is out of. Pakistan and his presence cannot be procured without undue waste of time. His grievance is that by making such an application the accused were trying to delay the proceedings. Be that as it may an order was passed by the Vth Additional Sessions Judge at Karachi on 31st March, 1984 whereby summons were ordered to issue to complainant for his appearance on 12th May, 1983. From the tenor of the order it would appear that the Additional Sessions Judge was pursuaded to pass his order on a misconception of law that for a Sessions Case the complainant should be examined as a first witness and the remaining witnesses have to follow. The grievance of Mr. Amir Ahmed Khan is that such procedure as the Additional Sessions Judge wants to follow will protect that proceedings and is in any case not intended by law. The point that requires consideration is whether in a Sessions case the complainant must be examined first before any other witness is examined. The relevant provision in the Criminal Procedure Code as initially appearing was section

286. Subsection (2) of this section stated that "the prosecutor shall then examine the witnesses". The examination of witnesses was to immediately succeed the opening address of the prosecutor to which reference is made to subsection (1) of section 286 of Cr.P.C. On a consideration of the two subsections of section 286, Cr.P.C. the position is clear that after the opening address of the prosecutor he had to examine his witnesses. Neither the word "complainant" appears in subsection (2) of section 286, Cr.P.C. nor was any order for production of witnesses prescribed for adhering during the trial. However, section 286, Cr.P.C. was repealed by Code of Criminal Procedure (Amendment) Act, 44 of 1976. Section 265-F was inserted in the Code of Criminal Procedure and such section was captioned as "evidence for prosecution". Subsection (1) of this section which needs to be referred to is reproduced hereinbelow:-- "265-F. Evidence for prosecution.-- (1) If the accused does not plead guilty or the Court in its discretion does not convict him on his plea, the Court shall proceed to hear the complaint (if any) and take all such evidence as may be produced in support of the prosecution: Provided that the Court shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court." It now requires to be seen whether the Criminal Procedure Code makes a mandatory provision that the complainant should be the first witness to be examined or whether any order of examination of the witnesses could be adhered to by the prosecutor incharge of the trial subject to the orders of the Court. On a plain reading of the above-quoted provision it would appear that after recording of the plea of accused the Court has to proceed to hear the complainant, if any and take such evidence as may be produced in support of the prosecution. It would appear that section 265-F, Cr.P.C. seems to distinguish between the complainant and other witnesses for it says that the Court shall proceed to hear the complainant and take all other evidence. The point that is engaging my attention in this case is with regard to the order of witnesses so the question is that does the section -265-F Cr.P.C. make it mandatory for the Court to examine the complainant before examining other witnesses. In my view that does not appear to be the intention of the law-makers. Simply because the word complainant precedes the word "other witnesses" it cannot be stated that in all circumstances the examination of the comp lainant must precede the examination of the other witnesses. What is more that the word "and" has been used between the words "complainant" and "all such evidence". Since the complainant too is to give evidence and other witnesses have also to give evidence the purpose underlying examination of the complainant and other witnesses is the same. Since the purpose is the same the use of the word "and" is definitely in a conjunctive sense. That being the position it can never be said that the complainant must be examined before the other witnesses are examined. On the other hand taking the converse view that complainant's evidence shall have precedence over the evidence of other witnesses in all manner of circumstances may even lead to absurdity or at least waste of time. After all complainant is also a witness and some time he may not be as important witness as other witnesses may be. We know of so Many cases where complainants are generally witnesses of a formal type. There may be numerous cases where complainants are officials who may be having no direct knowledge about the happenings. Can it then be said that simply because a person has lodged a complaint or filed a report he must be examined first and the remaining witnesses cannot be examined without examining the complainant. To take such a view appears to be absolutely wrong. In any case no dogmatic rule can be laid on the point. What is more that in cases of the kind where it is shown that the complainant is not easily available or it would consume inordinate time to obtain his presence it would on the contrary be desirable, may necessary to examine other witnesses before examining the complainant. In these circumstances I am of the view that section 265-F, Cr.P.C. does not nor is intended to lay down any strict rules in regard to examination of the witnesses. In the instant case as in every other case the discretion will lie on the prosecutor, subject of course to the direction of the Court. The direction of the Court shall have to take into considera tion the expediency of the case and the speed for disposal of the same. I set aside the impugned order and direct that the trial Court, shall proceed with the case expeditiously regardless of complainant being available or not. No doubt if the complainant is available and the prosecutor wishing to examine him first a discretion will lie with the judge to direct the order in which the witnesses should be examined. Subject to the above observations the impugned order is set aside. S. G. D. Revision allowed.