1. ' Heard learned counsel for the parties and perused the record and proceedings of this case.
2. Applicant Malik Musheer is an accused in Sessions Case No,733 of 2003 and has challenged the order, dated 17th April, 2004, which, though mentions such a date in the middle part of the said order, yet under the signature of the Presiding Judge (viz. Vth Additional Sessions Judge, Karachi East) the date is differently mentioned as 18-3-2004; applicant has not shown to have approached the trial Court at the first instance and has directly filed this Criminal Revision Application in this Court and the same does not appear to be maintainable for such a reason but the propriety of the impugned order itself needs to be scrutinized which reads as under:-- "This case has been registered against the above named accused in the above-mentioned crime for trial.
3. ' Perusal of record reveals that police has submitted the challan on 4-12-2003 showing the accused namely Muhammad Amin son of Raham, (2) Manzoor Somro, (3) Rasheed son of Somro,
(4) Sharfo Faqir son of not known, (5) Fayyaz son of Nabi Bux, (6) Noor Ahmed son of Karim Bux, (7)
4. Wahab son of Mithal, (8) Nazir Ahmed son of not known as absconder. There is absolutely no logic why the Court should issue a warrant for arrest of accused that can be arrested under the law, by the police without a .Warrant. The law does not require issue of a warrant merely to fulfil a formality to make a case for proceeding under section 87, Cr.P.C. Otherwise, there is no sense in issuing a warrant to the same Police Officer for arrest of an accused about which he has already submitted a report reflecting his failure to arrest him despite powers to arrest him without a warrant.
5. ' There is thus, no provision of law making it mandatory for trial Court to issue warrants against alleged accused persons mentioned in the report by the police as absconder.
6. ' In present case, no accused is produced before the Court thus, I decide not to commence the trial for absence of the accused and the case is kept on dormant file to start trial whenever the accused is produced by the police before the Court as per matter of fact, a Court is concerned with an accused person, who is produced before it for trial, as held by Mr. Justice S.A. Rabbani, vide his order, dated 9-1-2001, in Criminal Bail Application No,1292 of 2000."
7. ' The trial Judge has made reference to the case which has been reported as Arshad Hussain v. The State PLD 2001 Kar. 211, paras. 18 and 19 thereof read as under:-- "(18) The practice, being followed by the Courts in the Province, that the trial against the accused present is postponed till proceedings under sections 87 and 88, Cr.P.C. Are complete against the alleged absconders, only delays the trial, for which the accused already present for trial suffers, as is the case of the present applicant. This practice is a cause of injustice, and it is extremely rare that evidence recorded under section 512, Cr.P.C. In absence of an accused is materially used against him in the trial after his arrest.
(19) In the interest of justice and to avoid unnecessary delay in trials, Criminal Courts in the Province may be advised to start trial against the accused produced before the Court, by---
(i) ignoring mention of alleged absconders in the police report where their parentage and address are not known; and
(ii) ordering separation of trial against the alleged absconders when father's name and address is mentioned in the police report."
8. ' The trial Judge has not made reference to the guidelines enumerated in the said decision of this Court, and has acted in a stereotype manner.
9. ' Consequently, the impugned order is hereby set aside with a direction to the trial Court that the prosecutor should be heard invariably in all such cases, referred to in the said decision of this Court as to whether or not the Investigating Agency had put in proper efforts to arrest the absconding accused persons and if yes, with what details; as and when absconding accused himself makes appearance before it, he/they should be invariably afforded with an opportunity of being heard on such aspect of the case, and then competent order should be passed according to law. The criminal revision application stands disposed of in such terms.