2022 PLP 32 (YLRN)

FAHIM AHMED SIDDIQUI, J.

The applicant/complainant filed a motion under section 540, Cr.P.C. in Session Case No. 568/2014 for recalling a witness alien to charge sheet but the same was declined by the trial Court {i.e. MCTC learned Additional Sessions Judge-I (MCTC), Sanghar} through impugned order dated 29.01.2020.

2. Briefly, the prosecution case is that the complaining party was available at their place when the respondents came there with lethal weapons and fired upon the complaining party. Due to such indiscriminate firing, two persons namely Muhammad Hussain Khoso and Ghulam Mustafa Khokhar expired while allegedly Kamil and Naseer Khan received injuries. After investigation, a Final Report (Chalan) was submitted in which along with other witnesses, the name of injured witness Kamil was mentioned while the name of Naseer Khan was not mentioned in the calendar of witnesses as he was neither examined by the medico-legal officer nor he preferred to record his statement under section 161, Cr.P.C. before Investigation Officer.

3. The learned counsel for the applicant submits that it is very much mentioned within the body of FIR that Naseer also received injuries but his name was not mentioned in the calendar of witnesses. According to him, the said witness approached Taluka Hospital, Khipro for treatment while the deceased and other injured were taken to Civil Hospital, Sanghar due to which he was not examined by the medico-legal officer of Sanghar. He further submits that the said witness was referred to Karachi and remained under treatment; therefore, he could not approach the Investigation Officer for the recording of his statement. He submits that the other injured witness namely Kamil in his deposition also mentioned the receiving injuries by Naseer while the complainant and eye-witnesses have also deposed under a similar line. According to him, being an eye-witness, it is necessary to go for the proper adjudication of the case that the said witness should also be examined by the trial Court. He submits that it would be in the interest of justice if the trial Court is directed to call the second injured witness namely Naseer for examination.

4. Mr. Imam Bux Baloch, learned counsel for respondent No.4 while opposing the instant application prefers his submissions. According to him, the trial is now at final stage and only final arguments to be heard. He submits that the story of approaching Khipro is a cooked up story with a scheme to get a further delay in the trial. He points out that from the statement of MLO, it is evident that the alleged injured witness was neither referred to Hyderabad or Karachi nor he was ever examined by the medico-legal officer. He submits that in fact the alleged witness has not received injuries and this fact is false.

5. Mr. Tarique Mehboob Sidhu Jat, learned counsel for the respondents Nos.5 and 7 submits that it is mentioned in FIR that the injured was taken to Civil Hospital, Sanghar but the medical officer belies that the injured Naseer was produced there. He submits that the police did not cite the said Naseer as a witness by giving reason of the same but the complainant party did not agitate regarding this fact since submission of challan i.e. for more than five years. Nothing on record to establish that the said person was shifted to Khipro. Regarding the documents of Khipro Hospital, his contention is that the same is false and fabricated with an intention to linger on the matter unnecessarily.

6. The learned A.P.G. supports the impugned order and adopted the submissions made by the counsel for the respondents. In addition, she submits that the case is concluded and now at this stage, the applicant has filed the application under section 540, Cr.P.C. with the intention to linger on the case. He submits that the documents showing to be issued from Taluka Hospital Khipro appear to be false as it is mentioned in the same that the injured witness Naseer received bullet injuries but he was discharged.

7. I have heard the arguments advanced and have gone through the relevant record including impugned order. In the instant case, plenty of material requires consideration. The Final Report (Challan) was submitted under section 512, Cr.P.C. in which it was categorically stated that the alleged witness Naseer was not medically examined nor contacted with the Investigation Officer; therefore, he was not mentioned in the calendar of witnesses. The said Final Report (Challan) was submitted in the year 2014 and since then complaining party has not filed any complaint against the police nor they tried to insert the name of the said witness in the calendar of witnesses. Now the case is almost complete and only the final arguments are to be addressed. The applicant is trying to call alleged injured Naseer on the basis of two pieces of evidence. Firstly, that the name of the said witness is mentioned within the body of FIR and secondly, because they have filed certain documents of Taluka Hospital, Khipro. From the said documents, it appears that the injured Naseer approached the said hospital instead of going to Civil Hospital, Sanghar. The learned counsel for the applicant could not point out that while the said witness was shifted to Taluka Hospital whereas the remaining witnesses and dead bodies were shifted to Civil Hospital Sanghar for treatment and other formalities. It is mentioned in the FIR that injured Naseer was taken to Civil Hospital from where he was referred to Hyderabad where he was under treatment until the lodgment of FIR. Nevertheless, this aspect of the FIR is not only belied by the medico-legal officer but the same is contradictory to the view taken by the applicant/complainant in the present application. All these facts have been properly thrashed out by the learned trial Court in the impugned order. The complainant party has not agitated regarding the non-inclusion of the name of the said witness not only during the long period as well as at the initial stage of the trial. The said application was filed when the case was transmitted to the MCTC for speedy disposal. It appears that the application under section 540, Cr.P.C. was moved with an intention to linger on the case and conceivably the complainant has no intention of the early disposal of the case.

8. In the existing position of affairs, I am confident to hold that there is no flaw in the impugned order, as such, there exists no reasonable ground to suggest any intervention in the same. Consequently, instant criminal revision application was dismissed through a short order dated 11.05.2020 and these are the reasons for the same. SA/N-34/Sindh Revision dismissed.