P L D 1969 Lahore 690 (PLP)

Qamar‑ul‑Islam for Respondent. Dates of hearing : 19th and 20th February 1969. This revision petition under section 439, Cr. P. C. has been filed by Khan Bahadur Ghulam Ahmad against the order of Mr. M. Y. Bajwa, Magistrate Ist Class with Section 30 Powers, Lahore, dated the 18th of June 1968, whereby he ordered closure of the prosecution evidence without allowing an opportunity to the petitioner for producing the Investigating Officer in the case.

2. Briefly facts of the case are that the petitioner addressed an application to the Senior Superintendent of Police, Lahore (Exh. P. F.) on the 12th of July 1966, who ordered registration of a case under section 420, P. P. C. The dispute arose out of an agreement which was entered into by the parties on the 12th of November 1963, by virtue of which the petitioner had to invest Rs.75,000.00. Rs.45,000.00 were to be invested in Kashmir Cotton and Rs. 30,000.00 in Khyber Spinning Company. This amount the petitioner had to pay in order to purchase shares of Mr. Whitelay respondent in both the companies. It was stipulated that a formal transfer deed will be issued in March 1964 in the name of the petitioner. The shares were to be purchased in the names of wife and grand‑children of the petitioner. He paid Rs. 35,000.00 to the respondent. Some other amounts were also paid in the names of the various children of the petitioner. The petitioner asked the respondent to issue him the Share Certificates in March 1964. The Share Certificates were never issued and in fact the Kashmir Cotton was not incorporated as a private limited company. The accused‑respondent went away to England in 1965, and it was found that the Kashmir Cotton Factory was never constructed. The machinery purchased, however, was transferred to some third person at Sahiwal. The case was investigated and the accused was challaned. Complainant's evidence was completed on the 20th of March 1968, while Rana Muhammad Shafi, a witness, was examined as P. W. 2 on the 6th of May 1968. Since Muzaffar Hussain P. W. did not appear in Court on the 6th of May 1968, warrants of his arrest were issued for the 13th of May 1968, on which date counsel for the complainant was not present and the witness was also absent. Fresh summons were issued for the 24th of May 1968. On the 24th the witness did not appear and the Presiding Officer was also on traffic duty. The case was adjourned to the 31st of May 1968, on which date the case was again adjourned to the 8th of June 1968. Another adjournment was ordered for the 18th of June 1968, as the witnesses were absent. The Magistrate also observed that no further opportunity will be given to the prosecution. On the 18th of June 1968, the case was transferred to another Magistrate and Muzaffar Hussain was examined on that date as P. W.

3. It may be mentioned here that the Investigating Officer did not appear in Court. It was contended before the learned Magistrate that since the case has been transferred the Investigating Officer was not conversant with this fact and, therefore, an opportunity should be allowed, but the request was not acceded to. It was observed by the learned Magistrate that he would not like to review the order of his predecessor and a direction was also issued by this Court that the case should be completed by the 23rd of June 1968.

4. It is true that opportunities were allowed to the petitioner to produce his evidence and it was, therefore, unnecessary to have permitted him any more chance to produce the Investigation Officer, but I feel the position in the case was a little bit changed. Had it remained with the original Magistrate the petitioner was not entitled to any other opportunity if the witness bad not turned up. The situation arose on account of the transfer and it could be said that the Investigating Officer had not come to know of the transfer of the case to the present Magistrate as summons were issued to him by another Magistrate to appear in his Court, and the witness was not supposed to go about finding as to in which Court he had to appear as a witness. The learned Magistrate has fallen in error in passing an order of refusal of the grant of an opportunity for the summoning of this witness afresh. The order of this Court was made in order to avoid further delay, but nevertheless it never meant that if the case had been transferred to another Court and a situation had arisen where a witness was not summoned by that Court, no adjournment should be allowed. Section 252 of the Code of Criminal Procedure provides that the Magistrate has to record evidence of the complainant and other evidence produced in support of the prosecution case. He is bound to issue summons to the witnesses who are likely to be acquainted with the fads of the case at the instance of the complainant. Coercive measures for the presence of the witnesses can be taken under sections 90, 91, 92 and 93 of the Code. This process seems to have been adopted in case of Muzaffar Husain P. W, but no such action was taken with regard to the Investigating Officer at, any stage. There cannot be any distinction between a public witness and that of a police official. As a matter of fact, the latter has to be more careful for appearance in Court. If for some reasons beyond his control the witness remained absent on previous hearings and no action was taken against him, surely he was entitled to a fresh notice, when the case was transferred to the present Magistrate. As the witness could not dream of the transfer of the case, all that he was required to do was to appear as a witness in that particular Court, which perhaps was not functioning on that date. The refusal of the trial Magistrate to allow an opportunity to the petitioner to produce the Investigating Officer is not a proper exercise of his powers under section 344 of the Code of Criminal Procedure. It could not be considered to be a review of an order passed by his predecessor. Fair opportunity should be allowed to the prosecution to produce its witnesses. Somewhat similar order was set aside in the exercise of revisional jurisdiction in S. P. Dubey v. Narsingh Bahadur (A I R 1961 All. 447). Unnecessary adjournments should not be given in order to delay the trial. Muhammad Hussain v. The State (P L D 1959 Lah. 322) and Hamid Husain v. The State (P L D 1960 Lah. 498) were cited at the Bar for that purpose. There can be no dispute with the proposition that unnecessary adjournments to prolong a trial should not be granted, but in this peculiar situation the Magistrate had not acted properly in refusing to grant an adjournment for the production of the Investigating Officer.

5. I would, therefore, set aside the impugned order and direct that the record of this case be immediately transmitted to the trial Court who would fix a date, summon the Investigating Officer and if necessary, may take coercive measures for his presence in Court.

6. It was submitted at the Bar that so far only the charge has been framed in the case and the petitioner has filed a revision petition before the learned Sessions Judge for the amendment of the charge in order to include section 406, P. P. C. This, it is stated, has been done in order to prolong the trial so that the respondent, who is a foreigner, may not go back to his country. That matter is not before me and I cannot express any opinion on the merits of that petition. However, it should be borne in mind that the trial should not drag on unnecessarily. With these observations this revision petition is accepted. S. Q. Petition accepted.