1989SCMR244 (PLP)

SHAFIUR RAHMAN, J.‑‑The petitioner, a complainant in a case filed by him under section 5(1)(i) of the Prevention of Corruption Act 1947, read with sections 448, 181/34, 109 P.P.C., on 27‑5‑1981, seeks leave to appeal against the judgment of the High Court of Sind dated 15‑12‑1987 upholding the rejection of his request for calling more witnesses and documents to prove the case. The proceedings in the complaint case have gone back to the Trial Court on remand from the High Court in Criminal Acquittal Appeal No. 27/80. After framing the three questions of law with regard to the very competence and maintainability of the complaint before the Trial Court the judgment proceeded to direct as hereunder:‑‑ "We would, therefore, allow the appeal and set aside the order under appeal but would direct the learned trial Court that before proceeding with the matter he should decide the above legal questions raised by the learned counsel for the State. The counsel for the accused will he entitled to urge the above points in opposition of the complaint in addition to the other points, if any, available. When the matter was taken up by the trial Court subsequent to the remand, an application was moved by the petitioner praying that Azizuddin accused who brought the, summons and the Advocate for Azizuddin who produced the Warrants in the Court end other witnesses mentioned in Application under section 540 Cr.P.C. should be summoned. The Trial Court rejected this application with the order as hereunder:‑‑ "Full opportunity was given to the parties to lead the evidence when the case proceeded before this Court. The case has now been remanded by the Hon'ble High Court to decide certain legal questions raised by the learned counsel for the State. This application which has been apparently made to summon and examine, the advocate of the accused has been made with the object to prolong and protect the proceedings and also to deprive the accused of the right to be represented by the above advocate." The application does not merit any consideration) and the same is accordingly dismissed." A Criminal Revision was preferred against this order which was rejected by the High Court in limine observing as follows:‑ "I have considered the contention of the learned counsel. The cases started on direct complaint which was filed in the year 1981. The parties have led their evidence and the matter is fixed for judgment. At this stage there was no reason to recall accused Azizuddin and to summon his Advocate for any evidence. The order passed by the learned Special Judge is quite legal, and it does not call for interference. The application is therefore dismissed in limine." The learned counsel for the petitioner contended that it was necessary for the just and proper decision of the Criminal complaint that the additional evidence sought to be produced by the complainant should have been brought on record and in the absence of it great prejudice is likely to result. The terms of the Remand Order, its interpretation by the Trial Court and the affirmance of such interpretation by the High Court, leaves no manner of doubt that while the Trial Court was to examine legal questions with regard to the competency of the complaint the petitioner wanted to lead additional evidence on facts. It was rightly observed by the Trial Court that the Remand Order had to be taken on its words and as the legal points have been formulated, they have to be disposed of and facts cannot be gone into without deciding those preliminary legal objections to the competence of the complaint. The petitioner has not been able to show us how the factual controversy could be reopened at that stage without regard to the competence of the complaint which has not yet been decided in terms of the direction contained in the Remand Order. It. is only after the legal issues have been decided and the complaint is further proceeded that the petitioner can draw the attention of the Court to the requirements of the case otherwise. At this stage no case is made out and leave to appeal is refused. M.Y.H./A‑350/S, Leave refused.