1999 PLP 70 (YLR)

Special Judge, Anti-Corruption (Prov.) Karachi" The learned counsel for the applicant has contended that the Law Officer Incharge State Work is mixed up with complainant party; that the trial Judge has erroneously allowed the application as he was not supposed to fill in the gaps and lacunas of prosecution case; that the impugned order was passed without hearing the counsel for the complainant and recording the objections of the accused, who opposed the said application; that the complainant was not examined by the Trial Court; that the Trial Court acted illegally by framing the charge twice and examining the accused twice; that the trial Judge was not competent to record the questions and answers himself. It was, thus, contended that the impugned order reproduced hereinabove is liable to be set aside. The learned counsel has placed reliance on AIR 1914 Sindh 89, PLD 1984 SC 95 and PLD 1975 Lahore 1431. Mr. Arshad Lodhi, learned Assistant Advocate-General, Sindh has supported the impugned order and opposed the present revision application. I have perused the material placed on record. The plain reading of F.I.R. shows that entire case hinges on contents of the power of attorney executed by (late) Syed Zaki Hyder in favour of his nephew Syed Rafi Hyder and it will be very much essential to peruse the same in order to arrive at a just decision of the case. It will be pertinent to reproduce hereunder .relevant proviso of section 94, Cr.P.C. "

94. Summons to produce document or other thing

(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for, the purposes of any investigation, inquiry,- trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order; Provided that no such officer shall issue any such order requiring the production of any document or other thing which is in the custody of a bank or banker as defined in the Bankers' Books Evidence Act, 1891 (XVII of 1891), and relates, or might disclose any information which relates, to the bank account of any person except,

(a) for the purpose of investigating an offence under sections 403, 406, 408 and 409 and sections 421 to 424 (both inclusive) and sections 465 to 477-A (both inclusive) or the Pakistan Penal Code, with the prior permission in writing of a Sessions Judge; and (b) in other cases, with the prior permission in writing of the High Court. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. (3) Nothing in this section shall be deemed to affect the Evidence Act, 1872, sections 123 and 124, or to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the Postal or Telegraph Authorities." The plain reading of above provision shows that the Court is competent to send for any document or anything for inspection, which is necessary or in the interest of justice, which forms the subject of the charge in a case pending before the Court and it has nexus with the offence which is sub judice. The application and impugned order reproduced hereinabove reveal that the notice with regard to summoning the document sought to be brought in Court was issued to the accused and after hearing the State' counsel and accused Court passed the impugned order. Thus, if the State counsel during the course of performance of his duties moved such application for the advancement of the cause of justice and the Trial Court summoned the said document, which is essential for just decision of the case, cannot be termed as erroneous action. Looking towards the peculiar facts and circumstances of the case the order of the Trial Court could not be termed as one passed with the object of filling in the gaps or lacunas in the prosecution case but it was a just and proper order. The impugned order cannot be thrown away merely because the Advocate was not heard. It is the duty of the counsel of a party to be present before the Court when his cause is called in Court. The Court cannot indefinitely wait for the counsel for the party. It is evident from the impugned order that the accused was heard before passing of the impugned order. Thus, the ground of 'audi alteram partem' is not available to the applicant. It is not requirement of law that whatever is argued by either parties every word thereof be incorporated verbatim in the order. Now, I will advert to the framing of charge twice by the Trial Court. In this context it will be essential to reproduce hereunder section 227 of Cr.P.C. "

227. Court may alter charge.

(1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused." The plain reading of above provision shows that during the trial of a case the Court is competent to alter or add to charge on the basis of facts disclosed by the evidence recorded and material placed before it. In the case of Kapildeo Upadhya v. State (AIR 1954 Allahabad 557) it was observed that alteration or addition to the charge can be made more than once in a trial. The view of this Court was expressed in a D.B. decision in the case of Dodo and others v. Emperor (AIR 1915 Sindh 50), wherein it was observed that new charge can be added to the original charge even if it be unconnected in any way with the latter. The Trial Court is not devoid of jurisdiction even where a charge is properly framed but if it is found after taking evidence that it is groundless, the Court is competent to strike down the said charge. Thus, the Court has vide discretion to alter or add to the charge but after doing so the Court looking towards the facts and circumstances of a particular case has to follow the procedure as laid down in sections 228, 229, 230 and 231, Cr.P.C. The contention of the learned counsel that the trial Judge was not competent to record the questions and answers himself is also without substance. The section 356, Cr.P.C. enjoins that in trials before Court of Sessions and in inquiries under Chapter XII the evidence of a witness shall be taken down in writing in the language of the Court by the Magistrate or Sessions Judge himself or in his presence, hearing personal direction, and superintendence. "For the sake of convenience section 356, Cr.P.C. is reproduced hereinbelow:

"

356. Record in other cases.

(1) In trials before Courts of Sessions and in inquiries under Chapter XII, the evidence of each witness shall be taken down in writing in the language of the Court by the Magistrate or Sessions Judge, or in his presence and hearing and under his personal direction and superintendence and shall be signed by the Magistrate or Sessions Judge. Evidence given in English. (2) When the evidence of such witness is given in English, the Magistrate or Sessions Judge may take it down in that language with his own hand, and, unless the accused is familiar with English, or the language of the Court is English, an authenticated translation of such evidence in the language of the Court shall form part of the record. (2-A) When the evidence of such witness is given in any other language, not being English, than the language of the Court, the Magistrate or Sessions Judge may take it down in that language with his own hand, or cause it to be taken down in that language in his presence and hearing and under his personal direction and superintendence, and an authenticated translation of such evidence in the language of the-Court or in English shall form part of the record. Memorandum when evidence not taken down by the Magistrate or Judge himself. (3) In cases in which the evidence is not taken down in writing by the Magistrate or Sessions Judge, he shall, as the examination of each witness proceeds, make a memorandum of the substance of what such witness desposes; and such memorandum shall be written and signed by the Magistrate or Sessions Judge with his own hand, and shall form part of the record. (4) If the Magistrate or Sessions Judge is prevented from making a memorandum as above required, he shall record the reason of his inability to make it." The perusal of above provision shows that oral evidence can be taken down by the Presiding Officer of the court in his own hand. The provision of subsection (1) is mandatory and any deviation or departure from it may render the proceedings nullity in the eyes of law. In the case of Lai Muhammad Sardar and another v. The State (PLD 1960 Dacca 931), it was observed that a Special Judge under Pakistan Criminal Law Amendment Act, 1958 must confirm to the provisions of section 356, Cr.P.C. It will also be appropriate to reproduce section 342, Cr.P.C. hereinbelow: "

342. Power to examine the accused.

(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. (2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the Court may draw such inference from such refusal or answer as it thinks just. (3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. (4) Except as provided by subsection (2) of section 340, no oath shall be administered to the accused. " The plain reading of section 342, Cr.P.C. shows that Court is required to pi.it the questions to accused and record the answers, given by him. The first part of subsection (1) of this section is obligatory whereas second part of subsection (1) is mandatory. The accused must be examined by the Court under section 342, Cr.P.C. and the incriminating evidence adduced by the prosecution and brought on record is to be necessarily put to the accused and answers to it are to be taken down. Any departure from this, will vitiate the trial and this defect is not curable under section 537, Cr.P.C. Only Presiding Officer of the Court is competent and required by law to examine the accused. The counsel for the complainant and that of prosecution as well as of accused have no locus standi in this respect and they are not competent to take part in this examination as the matter is exclusively in between the Court and accused. However, after the close of examination if parties to proceedings feel that material part of the evidence was not put to the accused they can bring to the notice of the Court any such omission, and Court can re-examine the accused in order to meet the ends of justice. The citations relied upon by the learned counsel for the applicant are of no help and avail to him as the facts and circumstances of the cited cases are distinguishable from the facts and circumstances of the present case. The upshot of the above discussion is that the impugned order does not suffer from the illegality, consequently the revision application merits no consideration and it is accordingly dismissed. Before parting with this matter it will not be out of place to mention that F.I.R. was registered in 1986 and case is pending in the Trial Court since 1993. The learned Trial Court is, therefore, directed to conclude the trial of this case without any delay, within four (4) months after the receipt of this order. M.A. No.291 of 1999 and M.A. No.292 of 1999 have become infructuous as the main Revision Application has been disposed of. N.H.Q./R-79/K Revision petition dismissed.