1. ' These are 30 cases which had been noticed during the last inspection of the Courts in the Dadu District and the records whereof alongwith the records of certain other cases were brought here %o Karachi for purposes of suo motu revision. The main reason which pursuaded me to issue notices for exercise of suo motu revisional powers was that in all these cases there had been inordinate delay and despite the fact that the cases had been pending in the lower Courts for a number of years there appeared to be no prospect of their early disposal. These 30 cases may be broadly divided into following 4 categories :-
(a) Cases in which neither the accused nor the witnesses have been attending. The number of cases falling in this category is 6.
(b) Cases in which the accused or at least some of them have been attending but no witnesses have been examined. The number of cases falling in this category is 6.
(c) Cases in which some witnesses were examined before the enforcement of the Law Reform Ordinance, 1972, but thereafter no witnesses have been examined. The number of cases falling in this category is 11.
(d) Cases in which some witnesses were examined before as well after the enforcement of the Law Reforms Ordinance, 1972. The number of cases falling in this category is 7.
2. ' In the first category of cases come the cases out of which Suo Motu Revision Applications Nos, 210, 211, 213, 215, 221 and 225 all of 1977, have arisen. The case out of which S. M. Revision No, 210 of 1977 has arisen is n respect of an offence under section 380, P. P. C. And was challaned on 28-2-1974.
3. There is only one accused in this case, who has never been produced in Court and has been absconding all along.
4. ' In the case relating to S. M. Revision No, 211 of 1977, there are 11 accused. The. Challan in this case was submitted on 9-4-1973, in respect of offences under section 26 of the Forest Act, and section 353/411, P. P. C. It appears that none of the accused have been attending the Court since 3-6-1975.
5. A disturbing feature of this case is that from 15-4-1975 to 19-12-1967, no case diary was maintained.
6. ' In the case pertaining to S. M. Revision No, 213 of 1977, there are 3 accused. This case was challaned on 28-1-1975 under section 379/411, P. P. C. From 16-3-1975, all the accused have remained absent.
7. ' The case out of which S. M. Revision No, 215 of 1977 has arisen was challaned on 13-8-1974, under section 379, P. P. C. There are 2 accused in this case. One accused, by name Khan Muhammad, was produced on 11-11-1974, and was granted bail. He attended the Court will 24-4-1975, and thereafter he has remained absent. The other accused Allandinno has been absconding all along.
8. ' S. M. Revision No, 221 of 1977 pertains to the case of State v. Biloo under 'section 274/411, P. P. C., which was challaned on 11-3-1975., In this case the accused has been' absconding right from the beginning.
9. ' The last case in this category is that of State v. Khudadad under sections 279 and 304-A, P. P. C., which was challaned in the Court of the learned S. D. M., Kotri, on 17-9-1973. In this case also the accused was shown as absconder in the challan and has not so far been arrested or produced in Court.
3. A disturbing feature in all the cases falling in this category is that though the case diary for every hearing contains the direction for the issuance of process against the accused and the witnesses, and where the accused have been released on bail, notices to the sureties of the accused, an examination of the case files discloses that no such processes or notices were in fact issued. This is a serious lapse both on the part of the office of the learned Magistrates before whom these cases had been pending as well as the learned Magistrates themselves. It indicates that the learned Magistrates are not exercising the supervision over their offices which is expected ' of them and are not taking their responsibilities seriously as Presiding Officers of Courts. The learned Sessions Judge, Dadu, should obtain details from each Magistrate within his Division as to the number of cases in which the accused are absconding or not attending and the steps taken by the learned Magistrates to secure their attendance. If the learned Sessions Judge considers that the police has been remiss in the service of process upon the accused, the sureties or the witnesses, the learned Sessions Judge can take up the matter with the Superintendent of Police.
4. Another disturbing feature in the above cases is that no attempt was made to take proceedings under sections 87, 88 and 512, Cr. P. C. Chapter VI, Part F-II, of the Federal Capital and Sind Courts Criminal Circulars details the procedure for the recording of evidence in the absence of accused persons. Rule 3 in this Chapter emphasises that proceedings under section 512 should commence by evidence being taken and recorded (i) that the accused person has absconded; (ii) that due pursuit having been made, there is no immediate prospect of arresting him. An examination of the files of the cases in this category seems to suggest that the learned Magistrates concerned are wholly unaware of the provisions contained in the Criminal A Circulars regarding the recording of evidence in the absence of accused persons as well as the provisions of sections 87, 88, 512 and 514, Cr. P. C. This indeed is a bad state of affairs and a matter of regret. The files in these cases are directed to be returned to the Courts concerned who should immediately take proceedings in the case as indicated in the Criminal Circulars and the aforesaid sections of the Criminal Procedure Code. After the necessary proceedings under section 512, Cr. P. C. Have been taken and the evidence of witnesses, who are available, has been recorded, the cases should be kept on the dormant file, if the accused are found to be still untraceable.
5. S. M. Revisions Nos, 202, 204; 214, 218, 219 and 220 pertain to the second category of cases in which not a single witness has so far been examined. These cases are (1) State v. Naboo and others under section 379, P. P. C.; (2) State v. Laloo and others under section 379, P. P. C.; (3) State v.
10. Muhammad Khan under sections 457, 380, P. P. C.; (4) State v. Leemon and others under sections 363, 411, 147, 148, P. P. C.; (5) State v. Bundoo Khan under sections 427, 279 and 388, P. P. C. And (6)
11. State v. Piral and others under sections 307, 114, 506 and 408, P. P. C. The oldest case which falls in this category was challaned on 21-10-1972 and comparatively the most recent on 26-10-1973. As the prosecution have been unable to produce even a single witness in any of these cases, though these cases have been pending in the Courts since the last 5 to 6 years, it is apparent that the police and the witnesses have lost interest in such cases and allowing such cases to remain on the file of the Courts will not only unnecessary swell the -pending board of the Courts but will also be fruitless and will only result in unnecessary harassment of the accused. In the circumstances, the only appropriate course would appear- to be to have resort to the provisions of section 249-A, Cr.
12. P. C. The learned counsel who appeared for the State in these cases frankly conceded that there was little prospect of securing the attendance of the witnesses in any of these cases after such a long period and accordingly submitted that the accused be acquitted in these cases. I would acquit the accused in all these cases under section 249-A, Cr. P. C.
6. The 'largest number of cases with which we are presently concerned falls in this category. These are the cases out of which Suo Motu Revision Nos, 201, 205, 206, 208, 209, 212, 222, 226, 232, 233 and 245 have arisen. The titles of these 11 cases are: (1) State v. Muhammad Sadiq and others under sections 379 and 41J, P. P. C.; (2) State v. Qaim under section 397, P. P. C.; (3) State v. Maharram under section 379, P. P. C.; (4) State v. Ahmad and others under section 379, P. P. C.; (5) State v.
13. Abdul Razzak and others under sections 225 and 323, P. P. C.; (6) State v. Javery under section 380, P. P. C. ; (7) State v. Bali and others under section 379/411, P. P. C.; (8) State v. George and another under. Section 379, P. P. C.; (9) State v. Rahimdad and others under sections 332 and 353, P. P, C. (10)
14. State v. Isso under sections 353, 504, P. P. C.-' and (11) State v. Habib and others under sections 452, 324, 323, 148 and 149, P. P. C.
15. In the case of State v. Muhammad Sadiq and others 6 P. Ws. Were examined and the statements of the accused were recorded before the enforcement of the Law Reforms Ordinance, 1972. Thereafter, one or the other of the accused has been remaining absent, except on 10-12-1976, when both the accused were present. In this case, the allegation against the accused is that they had stolen 32 gunny bags from the factory of the Premier Tobacco Company, Kotri, where they were working. It is further alleged that they were apprehended by a police party with the stolen gunny bags, which they were taking away on a cycle. The prosecution have examined the Head Watchman and the Labour Officer of the Premier Tobacco Company, who have testified about the theft of the gunny bags allegedly secured from the accused, the mashir of the Vardat, the S. H.
0. Who had investigated the case, and A. S. I. Umerdin and P. C. Sahibdinno who are alleged to have apprehended the accused and recovered the stolen gunny bags from them. This evidence seems prima facie to indicate the guilt of the two accused. If the presence of these witnesses cannot be procured, their earlier evidence given in the case before the enforcement of the Law Reforms Ordinance, can be brought on the file of the present proceedings under the provisions of section 33 of the Evidence Act. It will be for the trial Court to appraise this evidence alongwith any other evidence which may be produced in the case either by the prosecution or the defence and to record his findings on such evidence.
16. ' The case of State v. Qaim was challaned on 20-2-1972. In this case, only two witnesses were examined as far back as on 22-5-1973, before the enforcement of the Law Reforms Ordinance, whereafter, no other witness has been examined in the case. The two witnesses examined are the complainant and his son, Muhdmmad Saleh. It is true that both of them have testified that theft of a bullock had taken place from their house and they had caught on the spot one of the thieves, while the other ran away, but no independent witness has been examined to corroborate their version, though admittedly a number of neighbours are said to have turned up immediately after the theft and seen the occurrence. The names of some of these witnesses also have been cited in the challan. Repeated issue of process to these witnesses has proved unavailing. It would appear that these witnesses are not willing to support the -prosecution and for this reason are avoiding to appear in Court. If this be the position, and the learned counsel appearing for the State frankly conceded that it was evidently the position, no useful purpose would be served by continuing proceedings against the accused in this case. No doubt, the Supreme Court, in the case of Ghulam Muhammad v. Muzammil Khan (1), has observed that if, in fact, an offence had been committed, justice requires that it should be enquired into and tried and that the mere fact that a long period has expired since the initiation of proceedings is no ground for quashing the criminal proceedings, but even in that case the Supreme Court, indicated that the High Court was competent to quash the proceedings if it was satisfied that even if the evidence adduced is left unrebutted no charge can at all be framed.
(1) PLD 1967 SC 317 ' Furthermore, the observation in that case regarding the undesirability of quashing criminal proceedings merely by reason of delay in the case was made with reference to the power of quashment exerciseable under section 561-A, Cr. P. C. As observed by the Supreme Court in that case, the inherent jurisdiction conferred by section 561-A, Cr. P. C., should not normally be invoked where another remedy is available. In the instant case, this Court is exercising its jurisdiction under section 439, Cr. P. C. And not under section 561-A, Cr. P. C. Since, I am clearly of the view that the evidence on record, even if unrebutted, would be wholly insufficient for the conviction of the accused and further there is no prospect of the prosecution being able to muster further evidence against the accused, I would acquit the accused under section 249-A, Cr. P. C.
17. ' In the case of State v. Muharram, which was challaned on 25-10-1973, only the complainant was examined on 16-7-1974, before the enforcement of the Law Reforms Ordinance. The complainant admittedly had no personal knowledge of the theft and was informed about it by his son, Phul. The evidence of this witness, even if believed, would thus be who insufficient, for the conviction of the accused. Since the remaining prosecu tion witnesses have failed to attend the Court in spite of repeated issu of process against them, the reasonable presumptions are that they are not likely to attend even hereafter, though the process may be repeated agains them, and even if they do attend, they are unlikely to support the prosecution case after such long lapse of time. In the circumstances, I would acquit the accused under section 249-A, Cr. P. C.
18. ' The next case falling in this category is that of State v. Ahmed and others, which was challaned on 8-1-1972. In this case 4 buffaloes are alleged to have been stolen which were subsequently recovered from a cattle pound. 4 witnesses were, examined in this case between 13-8-1974 and 27- 8-1975, before the enforcement of the Law Reforms Ordinance. These witnesses are complainant Sawan, Mashir of the Vardat and cattle graziers Jhando and Jummo. I have carefully examined the evidence of these 4 witnesses and am of opinion that even if this evidence was to be considered against the accused under section 33 of the Evidence Act, it would not result in the conviction of the accused, for it would not eliminate the reasonable suspicion that there was perhaps a dispute between the accused and the two cattle graziers over the grazing of cattle in the fields of the accused and in consequence whereof perhaps the accused had seized the cattle and taken them to the cattle pound. If the intention of the accused had been to commit theft, there was no reason why they should have immediately taken the cattle to the cattle pound. It is perhaps realisation of this fact that ha deterred the witnesses from attending the Court. In any case, since the prosecution have failed to adduce other evidence against the accused an the evidence which was led before the enforcement of the Law Reform Ordinance is not sufficient to establish the guilt of the accused, I would acquit the accused under section 249-A, Cr. P. C.
19. ' The case of State v. Abdul Razzak and others was challaned on 8-4-1974. The allegations against the accused, as contained in the F. I. R. Which was lodged on 25-11-1973, are that the accused had formed an unlawful assembly, attacked the, police party which was in charge of a suspect and had engineered the escape of the suspect. However, even the S. H.
20. 0., who had investH gated the case has not supported the prosecution case against the accused and stated that the evidence collected by him during the investigation of the case indicated that the two policemen incharge of the Prisoner had themselves wrongly released the prisoner, after taking illegal gratification from him. In the circumstances, there is no prospect whatsoever of the case resulting in the conviction of the accused. It would thus be fruitless to proceed with the trial of the case. I would accordingly acquit the accuse under section 249-A, Cr. P. C.
21. ' The case of State v. Javery, which was challaned on 14-7-1975, involves theft of two batteries from the Irrigation Workshop at Jamshoro. The two stolen batteries are said to have been found in a pit at a distance of about 10 paces from the outer gate of the workshop. Admittedly, no person had seen the theft of the batteries being 'committed or the accused being in possession of the batteries at any time. The only evidence against the accused is that he was seen running away from the Workshop in question at the time of the incident. The evidence on this point, however, is discrepant. Chowkidar Sajan was allegedly the person who had first seen the accused running away and had tried to apprehend him, but in his evidence this witness has not said any such thing.
22. It is also not understood how the accused could manage to steal two batteries from the Workshop, dump them at some distance from the Workshop and manage to make good his escape when the Workshop was surrounded by a high wall and on all the gates there were Chowkidars present on duty. Admittedly, the accused was not apprehended on the spot nor he was found carrying the stolen batteries. In the circumstances, the evidence which has been led in the case is wholly insufficient for establishing the guilt of the accused. Numerous opportunities have been provided to the prosecution for adducing other evidence against the accused but these have not been availed of by the prosecution. In the circumstances, it is futile to keep the proceedings alive any further. I would accordingly stop further proceedings in the case and acquit the accused under section 249-A, Cr. P. C.
23. ' The case of State v.. Bali and others is in respect of a theft of a goat. The challan in this case was submitted on 20-4-1973. 3 prosecution witnesses were examined in the case before the enforcement of the Law Reforms Ordinance. Thereafter, no witness attended or was examined. The 3 witnesses examined in the case are the complainant, his nephew Khamoo and a Head Constable of Police. The most important witness in the case, however, is the goat-grazier, who was incharge of the goats when one of them is said to have been stolen. He, however, has not been examined. It is unlikely that his attendance could be procured hereafter, and even if it is, it is highly doubtful whether he would support the prosecution, case after this lapse of time. In fact, his failure to appear in Court suggests that he is not willing to support the prosecution. In the circumstances, the case against the accused extremely weak, as admitted by the learned counsel I appearing for the State, and cannot result in conviction on the basis of the evidence on record, even if the same is believed. In the circumstances, it would. Be a waste of time to allow the proceedings to continue against the accused. I would accordingly acquit the accused under section 249-A, Cr. P. C.
24. ' The case of State v. George and another was challaned on 3-11-1973. The allegation against the accused is that they were caught red-handed while committing theft of iron parts of an oil cooler and other model instruments from the workshop of WAPDA at Jamshoro. The most important witnesses in this case are Jamil and Rashid who are said to have apprehended the accused red- handed with the stolen property. However, neither of these two witnesses has attended the Court for giving evidence. The 3 witnesses who were examined in the case before the enforcement of the Law Reforms Ordinance are Mashir Zahoor Ahmed and two WAPDA employees by name Muhammad Ismail and Akbar, both of whom have no personal knowledge about the commission of the theft, came subsequently and were informed of the incident by Jamil and Rashid, who are said to have arrested the accused. Since the two star witnesses have not attended the Court in spite of repeated issue of process against them and are not likely" to do so in the near future, it will be fruitless to continue the proceedings against the accused. I would accordingly stop further proceedings against the accused and acquit them under section 249-A, Cr. P. C.
25. ' The case of State v. Rahimdad and others under section 332/353, Cr. P. C. Was challaned on 1-10- 1974. The allegations against the accused are that they had assaulted and attacked two Police Constables while the latter were discharging their duty of serving notice upon suspect Rahimdad.
26. In this case only the two police constables were examined before the enforcement of the Law Reforms Ordinance. Thereafter, no other witness has been examined, though the Constables have given the names of a number of persons in whose presence the incident is said to have occurred.
27. Moreover, the notice which the two Constables claim that they were required to serve on Rahimdad is not forthcoming. In the circumstances, even if the evidence of these two Constables was to be admitted under the provisions of section 33 of the Evidence Act, it cannot be relied upon for the conviction of the accused, in view of the absence of independent corroborative evidence and the non-production of the notice which they claim that they wanted to serve upon Rahimdad.
28. Moreover, the story of the two'? Constables as to how and under what circumstances they were attacked is unconvincing. Although they claim that they were given lathi blows, no medical evidence has been led in support of their version. In the circumstances, there is little possibility of the case ending in conviction of the accused even if further opportunity is given to the prosecution to adduc additional evidence. I would accordingly stop further proceedings in the case and acquit the accused under section 249-A, Cr. P. C.
29. ' The next case falling in this category is that of State v. Isso. The allegation against the accused is that he had assaulted an Overseer while the latter and his Mukaddam, Noor Mohammad, were engaged in erecting a `Dikka' on the watercourse on which the land of the accused is situated. In this case, the only witness who has been examined is Mukaddam Noor Mohammad. He was examined on 17-5-1975. Thereafter, despite repeated issue of process, the other witnesses in the case have not cared to attend the Court. The most important witness in the case was the Overseer, but he has hept away from the Court. Moreover there is nothing to indication what authority the Overseer or Mukaddam were erecting the `Dikka on the watercourse. As it is unlikely that any further evidence would be made available in the case, even if the proceedings are allowed to continue, I would stop further proceedings in the case and would acquit the accused under section 249-A, Cr.
30. P. C.
31. ' The last case falling in this category is that of Habib and others, which was challaned as far back as on 7-3-1972. The allegation against the accused is that they came in a large body of 50 to 60 persons to the house of the complainant where they attacked him and his sister and beat them up with iron-shod lathis and dundas. 5 witnesses were examined in this case between 24-24973 to 24- 9-1974, before the ertforcement of the Law Reforms Ordinance. Thereafter, no P. Ws. Have attended the Court despite issue of repeated process. The witnesses examined in the case have given discrepant evidence. Whereas injured Nazir Ahmed has stated that he identified only Habib accused out of his 50 or 60 assailants, P. W. Faqir Mohammad has admitted that he did no see accused Habib anywhere at the scene of offence. Furthermore, the sister of complainant Nazir Ahmed, who is also stated to have been beaten in the instant case, has not been examined. It is also difficult to believe that the complainant or his sister would have escaped lightly with comparatively minor injuries if they had been attacked by as many as 50 or 60 persons. The evidence on record thus, even if it is used against the accused under the provisions of section 33 of the Evidence Act, would be wholly insufficient to convict the accused. I would accordingly stop further proceedings in the case and acquit the accused under section 249-A, Cr. P. C.
7. The 7 cases falling in the last category are.-(1) State v. Ahmed and others under section 323/324/147/148; (2) State v. Khuda Bux under section 379/411, P. P. C.; (3) State v. Hassan and others under sections 379/411, P. P. C.; (4) State v. Muhammad Hassan and others under sections 457/389, P. P. C.; (5) State v. Muhammad and others under section 324, 325, P. P. C.; (6) State v. Dur Muhammad and others under section 148/114/506/408, P. P. C. And (7) Jummo v. Muhammad Alyas and others under sections 352/342/ 148 and 149, P. P. C. In the case of Ahmed and others, 3 P. Ws.
32. Were examined before the enforcement of the Law Reforms Ordinance. They are complainant Jummo, injured Moharram and Ali Muhammad. All these 3 witnesses were examined on 25-2-1974, before the enforcement of the Law Reforms Ordinance. It may be mentioned that the witnesses in the case have been attending the Court from time to time but unfortunately they have not been examined. The case diary for 15-3-1977 shows that the witnesses were present but the accused were not in attendance and consequently the case had to be adjourned. In the next case falling in this category, namely State v. Khuda Bux, 5 witnesses were examined before the Law Reforms Ordinance, and equal number of witnesses were examined and charge framed after the enforcement of the Law Reforms Ordinance. In the next case of State v. Hassan and others, similarly 5 P. Ws. Were examined before the enforcement of the Law Reforms Ordinance, and 3 witnesses were examined and charge framed after the enforcement of the said Ordinance. In the case of State v. Muhammad Hassan and others again 2 P. Ws. Were examined before the enforcement of the Law Reforms Ordinance, while 4 P. Ws. Have been examined and charge framed after the enforcement of the said Ordinance. In the case of Muhammad and others under section 324/325, P. P. C., 6 prosecution witnesses, including the Medical Officer, were examined before the enforcement of the Law Reforms Ordinance, while charge was framed and 4 P. Ws. Examined after the enforcement of the said Ordinance. I have examined the evidence in all these 5 cases and find that there is some material against the accused. In the circumstances, a final opportunity may be given to the prosecution by the trial Court to produce the remaining witnesses in these cases and the trial Court may then decide the cases on the basis of the evidence available and such other evidence which the prosecution may produce within the period specified by the trial Court. I would accordingly direct that the record and proceedings in these 5 cases may he returned to the respective Courts, from where they have been requisitioned, with the direction to give one more opportunity to the prosecution to produce further evidence in the case and to decide the cases on the basis of the evidence already on record and such further evidence as the prosecution are able to adduce within the period specified by the Court.
8. There remain 2 more cases in this category, namely, State v. Dur Muhammad and others and State v. Jummo and others. In the former case two P. Ws. Were examined before the enforcement of the Law Reforms Ordinance, while charge was framed and 3 P. Ws. Were examined after the enforcement of the said Ordinance. In this case several last chances were given bX the trial Court to the prosecution for the production of the remaining witnesses but no further witnesses were produced in the case. It will thus be a sheer waste of time to give any further opportunity to the prosecution to produce the remaining witnesses. The incident out of which the case has arisen is said to have occurred on 11-7-1972, while the first report was filed 6 days later, on the 17th of Jul?
33. 1972. The case is the outcome of a dispute over a hotel which the complainant Muhammad Qasim claims was built by him and was given to accused Piral for management under a deed of agreement. There are 2 separate allegations against the accused. The first is that contrary to the agreement the accused are refusing to give to the complainant the proceeds of the hotel. The second is that when the complainant went to the accused to remonstrate with them over their behaviour, they are alleged to have drawn out pistols and threatened to kill him. Now, as regards the first allegation, the complainant has failed to establish the ownership of the hotel. In any case, the dispute appears to be of a civil nature rather than the subject of a criminal charge. As regards the second allegation, there is no independent corroboration, though admittedly the hotel is surrounded by shops and other hotels. The 0 case has been pending in the Court since November 1972, and it will be harassm ent of the accused to allow the proceedings to continue against them any longer. In the circumstances, I would stop further proceedings in the case and acquit the accused under section 249-A; Cr. P. C.
9. The case of Jummo v. Muhammad Ilyas and others was instituted by means of a private complaint which was filed in the Court of the Sub-Divisional Magistrate, Kotri, on 8-1-1971. Although, the allegations against the accused in the complaint are very serious, namely, that they came armed with rifles and revolvers to the house of complainant Jummo, for the purposes of abducting his wife, Mst. Pathani, there are circumstances to indicate that there is not a very great deal of truth in the complaint and that at any rate it is unlikely that the case would end in the conviction of the accused, even if further opportunity is given to the complainant to adduce additional evidence.
34. The circumstances which cast serious doubts on the whole case are, firstly, that the complaint was lodged two days after the incident and no explanation has been furnished for this delay, secondly, if the accused had come armed with guns and revolvers and accompanied by policemen, they would hardly have been pursuaded to go away, as is claimed by the complainant, without taking away Mst. Pathani, which is alleged to have been the object of their visit, thirdly, the admitted position that there is a dispute between the complainant and some of the accused over Mst.
35. Khand, who was previously married to the son of the complainan but has since then left him and is residing with some of the accused part and finally the fact that Head Master Qadir Bux, who is said to have pursuaded the accused to leave without taking away Mt. Pathani has not been examined though repeated opportunities in this behalf were given to the complainant. In the circumstances, I am of the opinion that there is no prospect of the case against the accused succeeding. I would accordingly stop further proceedings in the case and acquit the accused under section 249-A, Cr.
36. P. C.