IN THE HIGH COURT OF SINDH, KARACHI

Criminal Revision No. S - 90 of 2018

Mrs. Kaneez Fatima. …….……...Applicant.

Versus

Muhammad Naeem and others. ….........…Respondent.

Mr. Farooq Hashmat Abbasi, advocate for applicant.

Mr. Raja Ali Wahid Kunwar, advocate for respondent No. 1

Mr. Talib Ali Memon, APG.

Date of short order : 13.09.2018.

J U D G M E N T

Fahim Ahmed Siddiqui, J- By filing the instant criminal revision application, the applicant has assailed the impugned order dated 21-04-2018 passed by Additional Sessions Judge-VI, Karachi East in Illegal Dispossession Complaint No. 41/2017 on an application filed under Section 540 CrPC, when the entire trial under the Illegal Dispossession Act, 2005 (hereinafter ‘the IDP Act’) is completed. Under the verdict of impugned order, the learned trial Court dismissed the said application for calling some other witnesses, whose names were not earlier mentioned.

2. Succinctly, the facts of the instant criminal revision are that the applicant/complainant has filed a complaint under the IDP Act, regarding some property. The case was proceeded and after closure of complainant/prosecution side, when the matter was fixed for examination of accused u/s 342 CrPC, the applicant filed an application u/s 540 CrPC for calling some other persons as additional witnesses in respect of his complaint. The learned Additional Sessions Judge dismissed such application by penning down the impugned order.

3. In support of the instant criminal revision, learned counsel for the applicant submits that an application u/s 540 CrPC can be filed at any moment. He contends that as per the provision of law, the Code of Criminal Procedure is fully applicable, as such the applicant/complaining has full right to call any person as witness and examine him.

4. On the other hand, learned counsel for the respondent submits that the trial is at almost conclusion, as only the statements of accused u/s 342 CrPC are required to be examined. He submits that at this stage, the applicant/complainant should not be allowed to bring some additional material on the record through examining some persons, whose names have not been given within the body of complaints filed by the applicant/complainant. According to him, it amounts to permit the applicant/complainant to fill up lacuna, which were left by the complainant or other witnesses, and the same cannot be done.

5. I have heard the arguments advanced and have gone through the relevant material available on the record in respect of disposal of instant criminal appeal. From the impugned order, it is very much evident that the trial has already been completed and the site of prosecution has been closed. The closure of side for prosecution was done by the applicant/complement himself and now it is ringing in his mind that some material witnesses were also available with him and they should also be produced before the trial Court. In this respect, it would be appropriate to point out that as per provision of Section 265-C CrPC, it is necessary for a complaint case that not only the names but also the gist of their evidence should be mentioned in the body of complaint. In this respect, I would like to reproduce the relevant statutory provision as under:

‘265-C. Supply of statements and documents to the accused: (1) In all cases instituted upon police report, copies of the following documents shall be supplied free of cost to the accused not later than seven days before the commencement of the trial, namely--

(a) the first information reports

(b) the police report;

(c) the statements of all witnesses recorded under Sections 161 and 164; and

(d) the inspection note recorded by an investigation officer on his first visit, to the place of occurrence and the note recorded by him on recoveries made, if any:

Provided that, if any part of a statement recorded under Section 161 or Section 464 is such that its disclosure to the accused would be inexpedient in the public interest, such part of the statement shall be excluded from the copy of the statement furnished to the accused.

(2) in all cases instituted upon a complaint in writing- (a) the complainant shall-

(i) state in the petition of complaint the substance of the accusation, the names of his witnesses and the gist of the evidence which he is likely to adduce at the trial; and

(ii) within three days of the order of the Court under Section 204 for issue of process to the accused, file, in the Court for supply to the accused as many copies of the complaint and any other document -which he has filed with his complaint as the number of the accused and

(b) copies of the complaint, and any other documents which the complainant has filed therewith and the statement under Section'200 or Section 202 shall be supplied free of cost to the accused not later than seven days before the commencement of the trial.

Sub- section (2) of Section 265-C deals with complaint cases while sub- section (1) pertains to police cases initiated on the basis of FIR. From the above provision, it is clear that while filing complaint, the memo of complaint should describe the names of witnesses and a brief account of the evidence on which such witnesses would be examined. Since, under Sections 4 and 5 of the IDP Act, the Sessions Court is authorised to take cognizance directly on the basis of an investigation carried out under the direction of the Court; therefore, it is not necessary to send such complaint to a Judicial Magistrate for conducting enquiry under Section 200 CrPC but the rest of the provisions of complaint cases will be applicable as provided under Section 9 of the IDP Act. Nevertheless, the complaint filed under the IDP Act is a criminal complaint in which the legislature has provided a mechanism of ‘investigation’ instead of ‘enquiry’. In a police case, the evidence collected in the shape of the statements recorded under Section 161 CrPC is required to be supplied to the accused to enable him to prepare and plan his defence and on the same spirit of law, not only all those documents which are mentioned in sub- section (2) of Section 265-C but also the investigation report along with the statements recorded during investigation should also be supplied to the accused.

6. In view of the above discussion, it can safely be held that since the names and gist of evidence of the witnesses, whom the applicant intends to produce, was not mentioned in the memo of complaint; therefore, they cannot be examined at any stage after taking cognizance as a right while no material has come on the record during trial, which may justify for calling those persons as witness by the Court. With these observation, the instant criminal revision is dismissed. These are the reasons for my short order dated 13-09-2018.

J U D G E