1. This is an application under section 561-A, Cr.P.C., seeking quashment of the case pending against the petitioner Mehdi Ali in the Court of Additional Sessions Judge (South), Karachi.
2. It seems that the case pending in the lower Court was started on a complaint made by Risala Police Station. The allegation contained in the complaint are that accused Mehdi Ali falsely impersonated as surety for Karam Illahi and Boota who were accused persons in a case under section 109, Cr.P.C. Pending in the Court of S.D.M., Old Town.
3. The learned counsel for the petitioner has contended that the offence alleged against the petitioner is punishable under section 205, P.P.C., therefore, as required by clause (b) of subsection
(1) of section 195, Cr.P.C., the cognizance of the said offence can be taken only on the complaint filed by the Court concerned namely the Court of S.D.M., Old Town. Since this has not been done and the Court has taken the cognizance on the complaint of the police, the learned counsel argued, the trial is vitiated.
4. The next submission of the learned counsel for the petitioner is that the complaint was filed as far back as 4-4-1974, since which the case is being adjourned from time to time without any progress.
5. He states that not a single witness has been examined so far. The learned counsel is, therefore of the view that such long pendency of the case for more than a decade is nothing but an abuse of process of law. He has also pointed out that co-accused M.I. Shaikh who is an Advocate is still at large and no steps have been taken by the trial Court to secure his attendance nor has he been proclaimed as absconder.
6. No doubt cognizance of the case in question has been taken by the lower Court on the basis of complaint filed by the police. Obviously this is not in accordance with section 195(1)(b), Cr.P.C.
7. Which reads as under:- "No Court shall take cognizance -- (a)
8. (b)of any offence punishable under any of the following sections of the same Code namely sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 211 and 218 when such offence is alleged to have been committed in, or in relation to, except on the complaint in writing of such Court or some other Court to which such Court is subordinate.
9. (c)
10. The perusal of the above provision of law clearly shows that if the offence is committed under section 205. P.P.C. In, or in relation to any proceeding, in any Court, cognisance of such offence can only be taken upon a complaint made by such Court or by superior Court which such Court is subordinate. It is an admitted position that the petitioner Mehdi Ali offered himself falsely as a surety for the accused in the case pending in the Court of S.D.M., Old Town and as such prima facie he committed the offence under section 205 , P.P.C. Not only in the said Court but also in relation to the proceeding pending in that Court. Accordingly he could be proceeded with for the offence allegedly by him only on the complaint of the S.D.M., Old Town or the superior Court to which the said S.D.N. Is subordinate. Since the cognisance of the offence attributed to the petitioner has been taken on complaint of the police, I see no reason to differ from the view expressed at the bar that the trial of the petitioner is vitiated.
11. It is also not denied that the case against the petitioner has been lingering for over a decade in the lower Court and during this long period not a slight progress has been registered as neither the attendance of the co-accused has been secured nor any witness has been examined in support of the prosecution case so far. I am, therefore, in agreement with the argument that the pendency of the case for about eleven years amounts to abuse of process of the law.
12. For the above reasons it would not be justified to allow the case to pend in the lower Court.
13. Accordingly the application is allowed and the case pending in the lower Court is quashed.