2006 PLP 2820 (YLR)

MUHAMMAD FARRUKH MAHMUD, J.

The relevant facts leading to this petition are that on the statement of Muhammad Ahmad/petitioner, case F.I.R. No.245 was registered at Police Station Mcleod Ganj, District Bahawalnagar, on 22-11-2004, for offence under section 17(3) (Haraabah) of the Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979. After completion of investigation, report under section 173, Cr. P. C., challan was submitted on 17-12-2004. Offence under section 411, P.P.C. was also added in the. challan.

2. During trial, on the application of the petitioner, Rasheed Ahmad P.W. was given up as unnecessary vide order dated 20-10-2005. On 10-5-2006, the petitioner moved an application under section 540, Cr.P.C. for summoning Rasheed Ahmad witness who was previously given up and one A.S.-I. Muhammad Anwar who had arrested the accused on 3-12-2004. His application was dismissed by the learned trial Court vide order dated 24-5-2006. Hence, this petition.

3. Learned counsel for the petitioner has argued that the Court could summon the witnesses under section 540, Cr.P.C. at any stage of trial; that Rasheed Ahmad was an important witness and without recording of his statement, the accused could not be convicted under the Shariat Law (Haraabah). Similarly, according to the learned counsel, it was necessary to record the statement of Muhammad Anwar, A.S.-I., who had arrested the accused on 3-12-2004. The learned counsel has placed reliance on the case of Jaffar v. The State (1997 PCr.LJ 87).

4. I have heard the learned counsel for the petitioner as well as the learned A.A.-G. and have also gone through the relevant record of the case and the precedent cited by the petitioner's learned counsel.

5. It has been noticed that Rasheed Ahmad witness was given up by the learned trial Court on the application of the petitioner/complainant himself on 20-10-2005. Subsequently, after the lapse of seven months, he moved an application for summoning and recording the statement of Rasheed Ahmad. The application was moved after the closure of the prosecution evidence and after the recording of the statement of the accused under section 342, Cr.P.C. It is manifest that the intention behind the application was to prolong the agony of the accused. The argument of the learned counsel for the petitioner that the statement of Rasheed Ahmad was necessary for conviction of the accused under the Shariah Law is fallacious for the reasons: firstly, that this fact was known to the petitioner since the date of framing of charge and he himself moved the application for giving up Rasheed Ahmad witness as being unnecessary; secondly, that for conviction under the Shariah Law, the witnesses are to go through the process of Tazkiya-al-Shuhood. which can only be done by Muzakkis which facility is not available; and thirdly, that the petitioner cannot be allowed to fill up the gaps left by the prosecution. The prayer of the petitioner for summoning Muhammad Anwar/A.S.-I. as witness is also devoid of any force, as he was not the Investigating Officer (I.O.) nor his . statement was recorded under section 161, Cr.P.C. The learned trial Court has rightly concluded that his statement was not necessary for arriving at just decision of the case. As regards the case relied upon by the learned counsel for the petitioner, the same does not apply in the circumstances of the instant case, as in that case the given up witness was summoned on the application of the accused and not that of the complainant.

6. For the foregoing reasons, I find no merits in this petition which is dismissed in limine.

7. A copy of this order would be sent to the learned trial Court forthwith. S.M.B./M-336/L????????? Petition dismissed.