FAZAL KARIM, J.-This is the second petition under section 561-A Cr.P.C, by Abdul Waheed and Asghar Ali accused persons. It has arisen in the following circumstances.
2. On 14.7.1967, a case under section 307 of the PPC was registered on the statement of Muhammad Saeed, injured. The latter died of the injuries and the offence was aItered to one under section 302 of the PPC. The police, however, challaned the petitioners under section 304-1 of the PPC. When the learned trial Magistrate formally charged the petitioners under that section, Sh. Abdul Hameed, respondent, father of Muhammad Saeed, deceased, filed a revision petition in tins Court praying that the charge should be under section 302 of the PPC, At the same time, the petitioners applied under section 561-A of the Cr.P.C, for quashing the proceedings against them. Both the petitions were dismissed by my learned brother Ghulam Mujadid Mirza, J (as he then was) by his orders dated 18.5.1985, the revision petition of Sh. Abdul Hameed on the ground that the charge could be framed under section 304-1 PPC as well and the petition of the petitioners with a direction that the trial court should conclude the proceedings within three months of that order. It is stated that on 2.9.1985, the petitioners examined two D.Ws; earlier, their own statements under section 342 Cr.P.C, had been recorded. Sh. Abdul Hameed, respondent, then moved an application for the transfer of the case; it was dismissed by the leaned Sessions Judge. He then moved this Court and his application was dismissed on 7.12.1985. Sh. Abdul Hameed then moved the trial Court again for aItering the charge; his application was dismissed on 7.11.1985. Then on 19.12.1985, he filed a private complaint under section 302 of the PPC. Learned counsel for the petitioners states that the petitioners have not yet been summoned in the complaint. Earlier, Sh. Abdul Hameed had made an application before the trial court praying that the trial of the case be stayed because he had filed the complaint.
3. The present petition under section 561-A Cr.P.C, was made in January, 1986; by it, it is prayed that the case FIR No.66 of 1967 and the private complaint, "Sh. Abdul Hameed V. Abdul Waheed etc., pending in the Court of Mr. Zulfiqar Ali Khan, Additional Sessions Judge, Gujrat, may kindly be quashed".
4. I have heard the petitioners' counsel as also the learned State, counsel. No body has appeared today on bahalf of Sh. Abdul Hameed, respondent.
5. It is argued that despite the direction of this court that the case should be decided within three months, the learned trial Court has not been able to conclude the trial due to the dilatory method adopted by Sh. Abdul Hameed, respondent; that two eye-witnesses were cited in the callendar of witnesses but Sh. Abdul Hameed had made an application on 26.10.1968 saying that those witnesses had been won over and that they should not be examined as P.Ws; that one of them Fazal Ahmad, had made a statement under section 164 Cr.P.C, "in which he denied the occurrence", and that the complaint on the same facts is not competent.
6. As regards the complaint, it is stated that the learned trial Judge has not yet made any order summoning the petitioners. Nothing more need, therefore, be said on it.
7. The comments of the learned trial Magistrate show that it was due it various applications made by Sh. Abdul Hameed, respondent, that the trial had not reached its conclusion. It also appears to be true that Sh Abdul Hameed, respondent, was largely responsible for the failure of the trial Court to conclude the trial within three months in compliance with this Court's order dated 18.5.1985. At the same time, there is also no denying that it took this Court as many as fifteen years to decided the two petitions mentioned above. The prosecution evidence has concluded; it is also stated that defence evidence has also been recorded. It will not, therefore, be fair despite the delay in the trial of the case, to dispose of the case otherwise than on its merits. In other words, now that the evidence has already been recorded, it will be fair to both the parties to allow the case to be decided on the evidence led by the parties. I do not, therefore, think that it will be just, in the exercise of this Court's extra-ordinary jurisdiction under section 561-a Cr.P.C., to quash the proceedings. The petition is dismissed.