1994 P Cr (PLP)

MUHAMMAD ILYAS, J.

This criminal revision is directed against judgment, dated the 12th April, 1994, passed by Mr. Mahmud Khalid, Additional Sessions Judge, Rawalpindi, whereby he acquitted respondent No.l, Khalid Mahmood, hereinafter referred to as the respondent, of charges under section 377 of the Pakistan Penal Code and section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. It was alleged that the respondent had committed sodomy with the petitioner, Javed (Javed lqbal as per F.I.R.) who had iritiated the aforesaid criminal proceedings against the respondent. Dr. lkramullah Niazi was cited as one of the prosecution witnesses but the case was decided without recording his statement.

3. It was contended by learned counsel for the petitioner that it was the duty of the learned Additional Sessions Judge to procure the attendance of Dr. Ikramullah Niazi and examine him as a witness before disposing of the matter but as this was not done, his case was prejudiced and the learned Additional Sessions Judge found a ground for ordering the acquittal of the respondent. He, therefore, prayed that the case may be remanded for fresh decision after recording statement of the said Medical Officer.

4. Learned counsel for the State endorsed the 'plea raised by learned counsel for the petitioner.

5. The above plea was, however, opposed by learned counsel for the respondent. It was argued by him that the prosecution was given several opportunities to produce Dr. Ikramullah Niazi but it had failed to do so and, therefore, it did not now lie in the mouth of the complainant to object to the order of acquittal on the ground that the case was decided without his examination.

6. It goes without saying that to the circumstances of the present case Dr. Ikramullah Niazi was a material witness of the prosecution. He was summoned several times. On 20th February, 1994, he did enter appearance but could not be examined as a witness because learned counsel for the respondent was not available. Thus, it was due to the absence of the respondent's counsel that the case was adjourned without recording the statement of Dr. Ikramullah Niazi. On the said date, it was ordered by the learned trial Court that he shall be bound down for the next date, namely, 12th April, 1994. Orr the last mentioned date, Dr. Ikramullah Niazi was not present and the learned trial Court closed the, prosecution evidence without recording his statement. The short order passed by the learned trial Court on 12th April, 1994 does not say, in so many words, whether the Medical Officer in question was or was not present on that date.

7. As explained earlier, Dr. Ikramullah Niazi, who was a star witness in this case, could not be examined on 20th February, 1994 due to the absence of learned counsel for the respondent. The respondent should, therefore, not oppose the remand of the case for the recording of his statement. Evidence of Dr. Ikramullah Niazi is very important because he not only examined the petitioner with a view to finding out whether sodomy had been committed with him but had also examined the respondent in order to see whether he was capable of performing sexual intercourse. It was, therefore, not proper for the learned trial Court to decide the case without examining Dr. Ikramullah Niazi. The said learned Court should have procured his attendance by exercising all powers enjoyed by it in this behalf. Similar view was expressed by the Supreme Court in The State v. Sarwar Khan and others P L D 1984 SC 428 by making the following observations:-- "By way of guidance to the Courts it may be indicated that when the summons issue, as they issued a number of times in this case, for the witnesses and the witnesses do not appear in response to it, the reasons therefor must be examined and noted in the order-sheet and where necessary coercive steps should be taken for securing the attendance of witnesses. The court should not feel so powerless in the matter of securing attendance and should not lay the entire responsibility on the prosecutor himself." (Underlining is by us) The High Court of Sindh also recorded, following opinion in State through A: G. Sindh v. Muhammad Zakir Khan Changezi P L D 1988 Kar. 374 with regard to the duty of the trial in the matter of securing attendance of witnesses:-- "Presiding Officer of the Court is expected to conduct the proceedings in such a way so that ultimately justice is done in the case and truth is found out. The Presiding Officer has to perform active role in the Court and see that all steps which are to be taken under the law are so taken in accordance with procedure laid down in those provisions. He has to exercise control over the proceedings and is expected to be in command. He is not expected to demonstrate helplessness. It is not proper to say that summons were not served when they were issued once only. It is not enough and proper to say that summons were issued on Director of Forensic Science Laboratory but nobody turned up. Presiding Officer is expected to know that process of the Court enjoys maximum respect and he who does not obey the process his presence can be procured by way coercive process of bailable warrants and non-bailable warrants." (Underlinning is by us)

8. Looking at what has gone above, we are of the considered view that the case was not properly decided by the learned trial Court inasmuch as it was disposed of without making all out efforts to record statement of a very important witness. We are, therefore, inclined to remand the case for fresh decision after his examination.

9. Resultantly, we accept this criminal revision, set aside the judgment under revision and remand the case to the Sessions Judge, Rawalpindi (and not 8 the learned Additional Sessions Judge who passed the impugned judgment), with the direction that learned Sessions Judge shall procure the attendance of Dr. Ikramullah Niazi, as permitted by law, arid record his statement. After so doing, he shall re-examine the respondent under section 342 of the Code of Criminal Procedure with reference to the statement of Dr. lkramullah Niazi only. Besides, he shall allow the respondent reasonable opportunity to produce defence evidence and to make his own statement on oath with reference to the evidence of the said Medical Officer alone. After taking these steps, the learned Sessions Judge shall redecide the case without entrusting it to any Additional Sessions Judge.

10. Since it is an old matter the learned Sessions Judge shall decide the case afresh within three months of the receipt of the copy of this detailed judgment.

11. We are told that the respondent remained on bail for some time. He is again admitted to bail on the basis of the same bonds as furnished by him earlier. Needless to say that the learned Sessions Judge will be at liberty to cancel his bail if there are cogent reasons for so doing. N.H.Q./902/FSC Order accordingly