P Cr (PLP)

Farooq Aslam, petitioner, the complainant in a case registered vide F.I.R. No.307/90, dated 28-6-1990, under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, at Police Station Nawan Kot, Lahore, has preferred this revision petition against the order dated 29-10-1991, whereby Mr. Gulshad Hassan Alvi, Additional Sessions Judge, Lahore, has ordered for re-summoning of P.W.1 to P.WA

2. The case in question was pending trial in the Court of Mr. Farooq Hussain, Additional Sessions Judge, Lahore. On 17-2-1991, the learned Judge examined the petitioner ,P.W.1, Zafar Hussain P.W.2, Mst. Nighat P.W.3 and on the request of the learned counsel for the accused/respondents, the cross examination of these witnesses was reserved. On 23-3-1991 the said witnesses were duly cross-examined and the statement of P.W.4, Mumtaz Hussain Zahid, M.I.C. was recorded. On 4-4-1991 Mumtaz Begum was given up by the learned Deputy District Attorney. On 10-4-1991, Liaqat Ali Constable was examined as P.W.5 and Muhammad Siddique S.I. as P.W.6. On 28-4-1991, Mr. Farooq Hussain, Additional Sessions Judge, Lahore reportedly died and this case was entrusted to the Court of Mr. Gulshad Hassan Alvi Additional Sessions Judge, who has summoned P.W.1, P.W.2 and P.W.3 for the purposes of cross examination and P.W.4 for recording his statement afresh, because the Urdu record regarding cross-examination of P.W.1 to P.W.3 and the statement of P.W.4 does not bear the signatures of the then Presiding Officer.

3. Notices to the accused/respondents were also issued, and on appearance they had not denied the fact that they availed the opportunity of cross-examination.

4. With the assistance of the learned Law Officer, and the learned counsel for the petitioner and the respondents the record has been perused, and it stands established that P.W.1, P.W.2 and P.W.3 were examined on 17-2-1991 and the cross-examination of P.W.1 to P.W.3 was completed by the learned defence counsel, and the same was recorded in continuation of the statements recorded on 17-2-1992. The English record shows that the statements have been duly signed by the Presiding Officer, but some how he failed to sign the cross-examination of P.W.1 to P.W.3 and the statement of P.W.4 recorded on 24-3-1991, in the Urdu record. The proceedings conducted on 4-4-1991 and 10-4-1991, had been signed by the Presiding Officer in both the records. Just through sheer inadvertence the Urdu record of cross examination and the statement of P.W.4, recorded on 24-3-1991, could not be signed by the Presiding Officer.

5. In fact the learned Additional Sessions Judge (since dead) had acted I in accordance with the provisions of section 357, Cr.P.C. and signed the statements which finds verification from his orders in the Order sheet dated 17-2-1991 and 24-3-1991, and also from the fact that the English record of the statements has been signed by the said Presiding Officer, and thus record was prepared in accordance with the requirements of section 356, Cr.P.C. The omission in not signing the Urdu record prepared on 24-3-1991, is an irregularity curable under section 537, Cr.P.C. and no prejudice has been caused to the accused/respondents nor have they made `such a claim. Furthermore in Dilbar v. The State P L D 1986 Kar. 385, it has been held that the opportunity of cross-examination cannot be repeated without very valid reasons, and that the Court could only summon and examine or recall or re-examine any such person if his evidence appears to be essential to the just decision of the case. It needs to be observed here that it was not the case of the respondents that English record does not contain a full and an accurate account of the testimony in question therefore, as held in Abdul Rehman v. The King Emperor I L R 5 Rang. 53, the irregularity complained of may be considered mere technical irregularity, curable under section 537, Cr.P.C. as in this case too, it had been observed that the evidence of the witnesses was recorded in full and that there was no suggestion that the record had not contained full and accurate account of the depositions, as in the instant case as stated above. '

6. Therefore, in pursuance to what has been stated above, and as the accused have already availed the opportunity of cross-examination in question and as no prejudice has been caused to the accused because of the omission of the Urdu record of the said cross-examination not having been signed by the learned trial Judge, it is hereby held that no case was made out for the said witnesses to be resummoned for the purposes of cross-examination once again. Therefore, the impugned order, dated 29-10-1991 is not in accordance with law, under the facts and circumstances of the case. In this respect, further support is sought from The State v. Mehmud Ali 1972 P Cr. L J 1020, wherein it was held that the non-observance of provision of section 356, Cr.P.C. not having caused any prejudice to the accused, was mere irregularity and thus curable under the provisions of section 537, Cr.P.C. It was further held therein that such an irregularity shall not cause failure of justice and that the statements recorded could be made use of for all the purposes for which such statements are necessary. In this respect further reliance was placed on Ch. Khurshid Ahmad Chauhan v. The State 1976 P Cr. L J 342, wherein the learned trial Court's order resummoning the witnesses under section 540, Cr.P.C. to record their statements afresh, as earlier, the learned trial Court had recorded their statements in English only, was set aside with the observation that the re-examination of such witnesses would cause prejudice.

7. Resultantly, the present criminal revision petition is hereby allowed and the impugned order dated 29-10-1991 is hereby set aside. The learned trial Judge is directed to proceed with the case from the stage where it was entrusted to him with the further direction that he shall conclude the trial in question expeditiously. H.B.T./F-58/L Petition allowed.