2008 PLP 271 (YLR)

M. BILAL KHAN, J.

The petitioner through this petition has challenged the order dated 17-10-2007 passed by the learned Judge ATC IV, Lahore.

2. Briefly stated the facts of the case are that the petitioner is the complainant of case F.I.R.No.87 dated 14-3-2004 registered with Police Station Mustafaabad, Kasur under sections 324, 379, 396, 452, 337-H(2), 148, 149, P.P.C. read with section 7 of the Anti-Terrorism Act of 1997. After recording of the entire prosecution evidence which took more than three years, the petitioner filed an application for summoning Mst. Fajri as P.W., the Record-keeper of Services Hospital with patient Profile No.4575 H.No.251492 dated 3-4-2004, Ghulam Farid Inspector (already examined by the trial Court as P.W.19), Doctor Adnan Hakim (already examined as P.W.15 and scribes/Moharrars of cases F.I.Rs. Nos.351 of 2002, 629 of 2002 and 678 of 2004) registered at Police Station Sadar Kasur, as being essential for a just and a proper decision of the case. The application was contested by the accused and the learned trial Court after hearing the parties dismissed the application, hence this petition.

3. The learned counsel for the petitioner has vehemently argued that the evidence sought to be summoned is essential for a just and a proper decision of the case and even though the case is fixed for recording of statements of the accused in terms of section 342 Cr.P.C. however, there is no bar under the law for summoning the witnesses and the record at this stage. He has, placed reliance on the cases or Muhammad Rafiq v. Muhammad Ashraf and others (NLR 1999 Cr. 707) and Abdul Latif Aasi v. The State (1999 MLD 1069).

4. We have heard the learned counsel at length and gone through the order of the learned trial Court as well as the documents appended with the petition.

5. The learned 'trial Court while discussing the evidence sought to be produced at the trial has observed as under:- "Mst. Fajri and the other companion of Haji Naseeb Khan refused to endorse the statement of Haji Naseeb Khan recorded by the police under section 161 Cr.P.C. Haji Naseeb Khan deceased was produced before a learned Magistrate on the same day and was given in custody of Hajan Qabooli Bibi his wife. Haji Naseeb Khan refused to get himself medically examined. In police Diary No.114 dated 28-6-2007, it is recorded that Mst. Fajri submitted her affidavit before the police, in which she went on supporting the case of the complainant. It may be pointed out that during the period of more than three years the said lady no where turned up to get recorded her statement to depose about the version as contained in her affidavit. Therefore, I am of opinion that recording of her statement at this stage would definitely prejudice the defence of the accused persons. As far as, summoning of the other above mentioned witnesses and the relevant record is concerned, the prosecution has already led evidence about presence of the injuries at the person of the 'deceased in form of MLR and Post-mortem Examination Report. Direct evidence regarding his abduction had also been adduced. Summoning of the Moharrars to get exhibited the F.I.Rs. aims at proving character of the accused persons which per law i.e. Art.68 of Qanun-e-Shahadat Order 1984 would be irrelevant. Therefore, I am of opinion that request of the complainant being made through the instant application is devoid of any force and resultantly, the petition is rejected."

6. From the foregoing it is manifest that the learned trial Court did not feel it expedient to summon the witnesses and the record as prayed for in the petition for a number of reasons and the foremost being that the evidence was not essential for a proper and a just decision of the case as the same was irrelevant. The prosecution evidence comprised of twenty witnesses whose testimony had been recorded over a period of three years and the purpose for which the evidence was required to be summoned already stood proved. Any delay in the trial would prolong the agony of the accused who are going through the rigors of the trial since 2004. No doubt,' it is for the trial Court to determine as to which evidence is necessary and which is not. However, the facts, the surrounding circumstances and the intent of the parties also has to be looked into: It is evident that the learned Court has made a positive determination that the evidence sought to be produced has no bearing on determining the guilt or innocence of the accused: The learned counsel has not been able to show or point out any aspect of the case whereby it could be said that the discretion exercised by the trial Court was arbitrary or fanciful. The judgments cited by the learned counsel are distinguishable on facts.

7. For what has been stated above, we find no merit in the petition which is dismissed in limine. N.H.Q./M-556/L Petition dismissed.