P L D 2013 Sindh 532 (PLP)

NAIMATULLAH PHULPOTO, J.

By this single order we will dispose of Criminal Revision Applications Nos.48 and 49 of 2013 filed by applicants/accused Iftikhar Ali and Ahsan Mian, respectively, as the same arise out of the order dated 11th March 2013, passed by learned Special Judge (STA)/Sessions Judge, Shaheed Benazir Abad in S.T.A. Cases. Nos.7 of 2003 and 138/2012, whereby prayer of the applicants/accused for consolidation of the cases viz. Cases Nos.7 of 2013 and 138 of 2013, arising out of F.I.R. No.104 of 1999 under section 302, P.P.C. registered at Police Station Qazi Ahmed and prayer to proceed with the cases afresh were declined by the learned trial Court. For the sake of convenience and to understand the factual position, the relevant portion of the order of the learned trial Court dated 11-3-2013 is reproduced as under: "The perusal of record further reveals that an applicant/accused Ahsan Mian against whom N.B.W. has been issued by this court due to his abscondance filed Criminal Revision No.119 of 2012, before the Honourable High Court of Sindh against the order of this court. Consequence whereof, the Honourable High Court of Sindh has been pleased to set aside the order of this Court and applicant/accused was allowed to attend trial proceedings on same surety. Thus, applicant/accused put his appearance before this court on 21-6-2012 and for evidence purpose, process against the remaining P.Ws. has been issued so that trial may be concluded as per directives of the Honourable Supreme Court of Pakistan. It is strange to note that both the applicants have now filed these applications under section 239, Cr.P.C. praying therein that their cases may be amalgamated and proceed with the cases afresh. I am no persuaded to convince myself with the contention of the learned counsel for the applicant/accused as all most evidence of the P.Ws. so far been brought on record has been recorded in presence of both the applicants/accused. Their respective counsel had also cross-examined to said P.Ws. at length. Only purpose behind bifurcation of the case of the applicant/accused Ahsan Mian during his abscondance period from the case of applicant/accused in attendance namely Iftikhar Ahmed was to initiate proceedings under sections 87/88 Cr.P.C. so also record evidence of the remaining P.Ws. in presence of applicant/accused who was in attendance at that time. In such situation question of amalgamation of the cases and recalling prosecution witnesses who had already been examined in presence of both the applicants and their counsel, does not arise. No prejudice appears to have been caused to any of applicant/accused. Rather filing of these applications at the time when trial is likely to be concluded, appears to be delaying tactics in order to frustrate the directives of the Honourable Supreme Court of Pakistan, issued to this Court, vide letter No.(i)267 of 2011, dated 24-9-2011, (ii) 267 of 2011, dated 25-2-2012, (iii) 267 of 2012, dated 16-6-2012 (iv) 267 of 2012, dated 30-7-2012 and (v) 267 of 2012, dated 8-9-2012, to conclude the trial expeditiously.

10. It is worthwhile to mention here that in this case only few prosecution witnesses are yet to be examined to conclude the trial. Their evidence would be recorded in presence of both the applicants/accused and judgment is yet to be handed down, therefore, these applications in terms of section 239 Cr.P.C. are without any substance." Learned advocate for the applicants mainly contended that trial Court had wrongly bifurcated the case of the applicant Ahsan Mian, the persons accused of same offence are to be charged and tried together under provisions of section 239, Cr.P.C. The applicants/accused remained absent on one date of hearing and the trial Court, in hasty manner, bifurcated the cases of the applicants/accused from the case of co-accused on 31-3-2012. Lastly, it is argued that trial Court has committed illegality. Learned A.P.G. strongly opposed the revisions and argued that the applicant/accused Ahsan Mian had remained absent and his case was bifurcated and case of co-accused proceeded. He further submitted that both cases are almost complete, no prejudice would be caused to the applicants/accused if their cases are tried separately. It is submitted that trial Court has rightly exercised discretion. We have carefully heard the learned counsel for parties and perused the relevant record. Learned trial court in it's order dated 31-3-2012 has observed that applicant/accused Ahsan Mian remained absent and NBWs were issued against him. His case was bifurcated from the case of co-accused and prosecution witnesses were examined during the trial of co-accused, to avoid delay in conclusion of trial. Applicant/accused, namely Ahsan Mian subsequently joined the trial and his case proceeded separately and evidence of 13 P.Ws. during the trial of co-accused and 15 P.Ws. during trial of present applicant/accused have been recorded and all the P.Ws. were cross-examined at length by their respective counsel. Learned trial Court has rightly observed that due to act of applicant/accused, namely, Ahsan Mian of his deliberate absence, case was bifurcated. Inconvenience would be caused to the prosecution witnesses if P.Ws. are recalled and both cases are amalgamated. Delay in conclusion of trial would also be caused. Moreover, learned advocate for the applicants could not point out any prejudice, which has been caused to the applicants/accused by separate trials, court is not bound in every case to try offence or the persons jointly. In this regard reliance can be placed upon the case of Noor Ahmed v. The State (PLD 1964 Supreme Court 120), in which it has been observed as under: "...............Even though sections 235 and 239 of the Criminal Procedure Code give a direction to the Court to try certain persons and/or offences jointly, yet there are certain considerations which are more fundamental than merely the convenience of the proceeding or trial which must be kept in view when deciding as to whether the discretion should in a given case be exercised or not. In a criminal trial, as we have already observed, it is a fundamental principle that the trial of an accused person should be conducted with the utmost fairness and anything which is likely to cause any serious embarrassment to him in the conduct of his defence should be avoided." For the above stated reasons, the impugned order did not suffer from any material illegality or irregularity. As such, same is maintained. Consequently, revision applications are without merit, the same are dismissed. MWA/I-11/K Revision applications dismisse