P L D 2002 Karachi 411 (PLP)

By this application made under sections 435 and 439, Cr.P.C. learned counsel for the applicant has called in question the legality, propriety and correctness of the proceedings, pending in the Court of learned Additional Sessions Judge, Kandhkot in a case bearing Crime No. 102‑ of 1998, Police Station, Ghouspur for an offence under section 302, P.P.C. The prosecution story as enunciated in the F.I.R. is that on 18‑11‑1998 at 5‑30 p.m. complainant Ghazi Ogahi appeared at Police Station Ghouspur, District Jacobabad alleging inter alia that on 8‑11‑1998 complainant, his son Muhammad Ramzan and relatives Ali Bux and Abdul Haleem came to Ghouspur Town where at about 2‑00 p.m. they received an information that Abdul Rasheed after desecration of Holy Qur'an had run away from the police station. The people from vicinity went in search of the accused Abdul Rasheed Shaikh but they could bot get any clue. It is further alleged that the complainant party also went in search of accused Abdul Rasheed Shaikh and at about 4‑00 p.m. when they reached at the diversion of village Khair Muhammad Maganhar, they received an information that Ghouspur Police in connivance with the accused Abdul Rasheed Shaikh had managed his escape. The people of the vicinity came out on the road and blocked the traffic disclosing that until and unless the accused is not arrested they will not leave the roads. In the meanwhile one Mobile came in which A.S.‑I. Niaz Mirani alongwith his police party came at the road and cleared the same for traffic. At this, the persons present disclosed that they will not clear the road until and unless the accused is not arrested. This led to a controversy in between the A.S.‑I. Niaz Mirani and the people who had come on the road for demonstration. It is alleged that A.S.‑I. Niaz Mirani tired a burst from his K.K. at Muhammad Ramzan who succumbed to injuries at the spot and it created chaos and agitation in the public in which some police personnel sustained injuries. Thereafter, complainant with the assistance of P.Ws. removed the deceased to police station where an F.I.R. was registered as above. The investigation followed and in due course the case has been sent up to stand trial in the Court of law. I have heard the learned counsel for the respective parties and perused the record. It has been contended by the learned counsel for the applicant that the impugned order dated 7‑7‑2001 suffers from material illegalities, irregularities and improbabilities inasmuch as the three police constables namely PC/2921 Fauj Ali Bahlkani Police Station Gublo, PC/28 Abdul Wahab Ghunyo Police Station B‑Colony and PC/2933 Nizamuddin Dahani, Police Lines, Jacobabad sustained injuries during the scuffle but their names were not disclosed either in‑the F.I.R. or in the charge‑sheet. He further argues that the statements of these witnesses under section 161; Cr.P.C. were not recorded and as such the order passed by learned lower Court cannot withstand. Learned counsel appearing on behalf of the respondent, however, opposed the revision application on the ground that these witnesses appeared to be material witnesses, their presence at the scene of offence is natural and beyond any reasonable doubt inasmuch as they had sustained injuries during the course of scuffle. The fact that they had sustained injuries showing their presence at the scene of offence appears to be natural and the learned trial Court was right in calling these witnesses to be examined for the purpose or recording their evidence. Learned counsel appearing on behalf of the State has supported the order of the trial Court and states that the same did not suffer from any illegality or material irregularity. I have given my anxious consideration to the arguments of the respective parties and perused the record which shows that on 8‑11‑1998 injuries of injured PC Fauj Ali Bahlkani, PC Abdul Wahab and PC Nizamuddin were noted and such Mashirnama was prepared in presence of Mashirs namely PC/1259 Muhammad Ramzan and PC/3560 Saith Ali of Police Station Ghouspnr. The statements under section 161, Cr.P.C. of above Police Constables were recorded by the Investigating Officer and thereafter referred to the Medical Officer for examination and certificate and as per Medical Certificate PC Fauj Ali sustained two injuries by means of hard blunt substance, PC Abdul Wahab sustained two injuries by hard and blunt substance so also PC, Nizamuddin had sustained three injuries by reasons of hard and blunt substance. The learned trial Judge by an impugned order dated 16‑10‑2001 observed as under:‑‑ "The purpose and import of the law laid down under section 540, Cr.P.C. is that Court should examine arty person who has any knowledge about the case and the controversy therein so as to bring on record all the relevant and material facts and to do complete justice after taking into consideration all the aspects of the case. Admittedly, in the case in hand P.Cs. Fauj Ali, Nizamuddin and Abdul Wahab were not only examined under section 161, Cr.P.C. but also were referred to hospital for treatment of injuries and the certificate for the same which they sustained in this incident. Apparently, they are the persons who had knowledge of some material facts about the incident and their examination/evidence as such would be helpful in bringing relevant material on record for consideration and adjudication and to do complete justice in the case. There is, therefore, necessity of said witnesses to be called/summoned as Court‑witnesses in this case. I, therefore, allow the application moved by learned defence counsel and direct that P.Cs. Fouj Ali, Abdul Wahab and Nizamuddin be summoned as Court‑witnesses in this case as prayed and the process against them be issued for that learned Defence Counsel is advised to file their addresses." In the circumstances, I do not find any illegality or irregularity in the order passed by the learned trial Court. Consequently, the application is dismissed. H.B.T./G‑103/K Application dismissed.