1988 MLD 916 (PLP)

The facts giving rise to this revision are that or. 25‑11‑1987 Ghulam Haider petitioner and his co‑accused namely Abdul Maroof, Ahmad Faheem and Amjad Ali were arrested while proceeding in a Suzuki Car and on search different quantities of heroin was recovered from their possession. Forged currency notes were also alleged to have been recovered from the possession‑ of the petitioner and Ahmad Faheem co‑accused. After investigation the petitioner and his co‑accused were challaned under section 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and section 489‑C, P.P.C. On the receipt of challan in the Court o Mr. Ali Aqdas Shahzad, Judicial Magistrate, Lahore the petitioner and his companions were separately charged for possessing heroin and the forged currency notes.

2. On 6‑4‑1988 an application was submitted on behalf of Ghulam Haider petitioner before the trial Magistrate for conducting separate trials of the accused under the Prohibition Order and section 489‑C, P.P.C. because offences with that their forums of appeal were also separate. The appeal under Hudood cases lay to the Federal Shariat Court while for Penal Code's Offences the appeal lay to the Court of Sessions or High Court as the case may be. The learned trial Magistrate rejected the application mainly on the ground that it was belated. Mr. S. M. Zubair, learned A.A. G. has also been heard. He concedes that in view of the two separate forums provided for appeal complications may arise at ultimate stage and agrees to the filing of separate challans regarding counter‑feit currency against the petitioner and Ahmad Faheem accused but he states that there is no legal objection/defect to the joint trial of all the accused under Prohibition Order because the alleged recovery was effected at one and the same time and each accused has been separately charged for possessing the heroin I alleged to be recovered from him. He adds that under section 537, Cr.P.C. any, defect in the charge is securable and the trial will not be vitiated for any commission or defect therein.

3. Learned counsel for the petitioner has not been able to meet the above objection of the learned A.A.‑G. with regard to the joint trial of the petitioner and his companions under the Prohibition Order. Accordingly, I overrule the objection raised by him in this behalf but direct that the challan of the petitioner and Ahmad Faheem accused for possessing counterfeit currency may be filed separately and their trials should also be held separately. Learned counsel for the j petitioner states that in view of the patent illegality in the joint trial of the petitioner under Prohibition Order and Section 489‑C, P.P.C. he did not cross‑examine the witnesses examined by the prosecution and requests that a direction may be issued to the trial Court to afford an opportunity to him to cross‑examine the prosecution witnesses. Learned A.A.‑G. has objected to it and states that the petitioner should apply to the trial Court in this respect under section 540, Cr.P.C. I agree with him. The trial Court is possessed of jurisdiction to recall any witness. I In view of the above the prayer for issuing a direction by this Court is declined. The petitioner should move the trial Court in this behalf which, if moved, shall in the interest of justice consider the propriety of recalling the witnesses so that no prejudice is caused to the accused. The petition is disposed of in the above terms. Copy of the order be sent to the Court concerned immediately for information and necessary action. G‑152/L./2523/L Order accordingly.