1983 (PLP)

Abdul Salam Ansari for Respondents Nos. 4 to 12 and

14. Date of hearing: 2nd March, 1983. JUDOMENT Heard Mr. Mohammad Ali Shaikh,. Advocate for the applicant, Mr. Abdul Salam Ansari, Advocate for Respondents Nos. 4 to 12 and 14 and Mr. Habibur Rashid for the State. This Revision Application challenges the order dated 22nd February, 1982 of the learned Sessions Judge, Thatta on an application under section 265:F, sub‑clause (vii) of Cr. P. C. praying for summoning of four witnesses in defence by the accused persons. The impugned order reads as under. :‑ Persons list at S. Nos. 1 to 3 and sought to be called as D. Ws. have already been examined on behalf of prosecution and cross-examined by accused. Accordingly, there is no justification to re‑examine them. In fact, this is an attempt to delay the proceed ings. The case pertains to 1973 and it cannot be permitted to be lingered on untenable pleas. The third person's whereabouts have not been given in the application and if the accused want to examine him, either they should disclose his whereabouts or take summons by hand. In both the cases, the accused, who all are on bail, shall get him served. Three of the four witnesses mentioned in the application namely writer Head Constable Deen Mohammad, S. H. O. Aziz Ahmad and Dr. Jhaman Das,. M. O. Sajawal had already appeared as prosecution wit nesses and were cross‑examined on behalf of the accused. The 4th witness Ditto son of Jumo Laghari was mentioned in the application but no address was shown against his name in the same. Since the three wit nesses had already been examined in the same case and had been cross-examined, the learned Sessions Judge had a discretion under section 540 to recall and re‑examined them but the application was not made under section 540 of Cr. P. C. but as already stated application had been filed under section 265‑F (vii). The Court, therefore, under that provisions was duty bond to issue process unless it considered that the application was made for the purpose of vexation or delay and if the application had to be rejected, the reasons for doing so had to be recorded. In the instant case the learned Sessions Judge rejected the application after recording the reasons in writing. It was observed by him that the application was an attempt to delay the proceedings and further that the case pertains to 1973 and could not be permitted to linger on unten able pleas. It was also observed that Ditto son of Jumo sought to be summoned as witness was just named without his whereabouts and address being supplied. Mr. Abdul Salam Ansari, the learned counsel for the respondents has argued that the main case of trial for murder has been delayed from time to time by making of applications for transfer and by filing of at least 3 Revision Applications. He has further pointed out that at least for decision of one such application the R & P of the murder case was requisitioned and remained with the High Court for a few months. The impugned order of the learned Sessions Judge, holding that the application was an attempt to delay the trial, cannot be consi dered as illegal or even improper in the circumstances of the case. Mr. Abdul Salam Ansari, the learned counsel has further argued, that since the applicant1faccused had the opportunity to cross‑examine these witnesses it was for them to Orin$ out all the points constituting their defence through such cross‑examination and that there would then have been no necessity of applying for recalling and re‑examining them as defence wit nesses. On the other hand, Mr. Mohammad Ali Shaikh, the learned counsel for the applicant states that he is not interested in cross‑examining the three official witnesses but he would examine them in defence to support the counter case. Clause (vii) of section 265‑F of Cr. P. C. however, gives the discretion to the trial Court not to issue the process for sum moning any such witness if it is of the opinion that such witness is being called for purpose of vexation or delay or defeating the ends of justice. The fact that no address of Ditto son of Jumo Laghari was mentioned, although he was sought to be summoned and the delays already caused on the ground of summoning witnesses was sufficient reason for refusal to summon the witnesses and the reasons have been recorded in writing. There is in the circumstances no weight in the Revision Application which is dismissed. M. Y. H Revision dismissed