' The petitioners have filed this petition under section 561-A, Cr.P.C. For abashment of proceedings in case State v. Muhammad Ali and 2 others arising out of F.I.R. No, 102, dated 23-3-1984, registered at Police Station Murree Road, Rawalpindi, under section 325/34, P.P.C. Pending in the Court of Mirza Karam Elahi Baig, Magistrate 1st Class Rawalpindi.
2. The brief facts are that the aforesaid case was registered against the petitioners at the instance of Sajjad Asghar Respondent No,1 wherein he stated that he was residing in Mittarpura Mohallah, where his maternal-uncle Pirzada Zahir-ul-Islam also resided, who owned a plot on the backside of Gul Noor Market, where two rooms were constructed, that close to that plot people from Sakardu were also residing; that as the plot was of considerable size and there was dispute between the accused persons and the complainant, as the accused wanted to build a mosque over the disputed property which could obstruct the way of the complainant party, and was objected to by the uncle of the complainant, Zahir-ul-Islam. On account of this property dispute, a quarrel ensued and it is alleged that the petitioners caused injuries with blunt weapons to the complainant on 23- 3-1984 at 11 a.m., whereupon the F.I.R. Was lodged at the police station the same day at 6-10 p.m.
3. On the basis of the challan the trial Court proceeded with the trial of the case. The trial Court framed the charge against Muhammad Ali petitioner No, 1 but did not frame the charge agianst Nasir and Nadir petitioners Nos. 2 and 3 respectively, till 27-7-1985, when they were summoned as accused persons for 1-8-1985.
4. The learned counsel for the petitioners submitted that it was incumbent on the trial Court to follow the procedure laid down in section 191, Cr.P.C. As the accused persons were summoned by the trial Court under section 190(c), Cr.P.C. It was obligatory upon the trial Court to have transferred the case to some other Court for trial and this has not been done.
It appears from the record that no objection was taken by petitioners 2 and 3 for the transfer of the case, but suo motu the learned Magistrate transferred the case to some other Court. Thereafter, the present trial Magistrate namely, Mirza Karam Elahi Baig, framed the charge against them on 19- 9-1985, which was not the date of hearing and there is nothing on the record to show that the charge was read over to them or it was signed by them. This charge neither bears the signatures of petitioners 2 and 3 nor of the trial Magistrate, as required by law.
' The learned counsel has based his claim on the defective framing of the charge and has submitted that in view of the protracted trial and non-framing of the charge, whole proceedings have been vitiated under the law and the petitioners are entitled to acquittal on the basis of abuse of process of law. He has relied upon Sheroo alias Shah Room v. The State and 4 others 1976 P Cr. L J 1408. In this case whereabouts of the prosccutrix, the main witness in the case were not known, the trial lingered on for six years without any progress and was not likely to be completed in near future. In the circumstances, the learned Judge quashed the proceedings. Learned counsel also relied on Fazal Karim v. The State PLD 1957 (W.P.) Lah.
837. In this case it was held that keeping a criminal case pending for five long years without doing anything substantial amounted to excessive abuse of process of law and denial of justice, and proceedings must, in the circumstances, be quashed. In Abdul Hag v. The State PLD 1964 (W.P.)
Lah. 246, proceedings were quashed as there was inordinate delay (11 years) in the disposal of a criminal case pending before the trial Court. In lsrar Hussain v. The State 1986 P Cr. L J 574 the police took more than three years to complete investigation and after submission of the challan the case lingered for over a decade in trial Court without making even a slight progress. It was held that pendency of the case for such a long period could not be without damaging impact on accused, because, on the one hand, the accused suffered agony of being dragged before police and in Court for so long and protracted litigation, on the other hand had robbed the accused of their peace of mind and had also cost them heavily in financial terms and the case pending before the trial Court was quashed.
5. The learned Law Officer who appeared on behalf of the State has submitted that the defective charge is no ground to quash the proceedings, because in the present case, this defective charge is curable under section 537, Cr.P.C. And the case has progressed without any objection having been raised by petitioners Nos. 2 and 3 before trial Court and the trial Court has examined almost all the eye-witnesses and when only two witnesses remained to be examined, the petitioners moved an application under section 249-A, Cr.P.C. Which was dismissed by the trial Court after elaborate discussion on the points raised vide order, dated 29-9-1988. The learned counsel submitted that this order has not been challenged in revisional jurisdiction and petition under section 561-A, Cr.P.C. Is not maintainable in the circumstances of the case.
6 I have carefully gone through the record and the submissions of the learned counsel referred above. I find that the defect pointed out by the learned counsel for the petitioners while framing charge against them on 19-9-1985 by the trial Court without complying with the formalities laid down in the Code of Criminal Procedure is not curable under section 537, Cr.P.C. This defect occurring in the proceedings has to be cured by remanding the case to the trial Court for framing charge against petitioners 2 and 3 afresh and thereafter to proceed in accordance with law.
'I am not discussing the evidence in this case, lest it may prejudice the case of either party. The learned counsel for the petitioners has laid stress on the case-law cited above to achieve the object that due to delay in the decision of the case, whole proceedings should be quashed. I have gone through the case-law, referred above, and have no cavil with the principle laid down therein.
In the present case, I find that the defect occurred due to the negligence of the Court and nobody is to be penalized for the act of the Court. The prosecution was not negligent in the disposal of the case as evidence was produced before the trial Court and the prosecution has almost completed its case before the trial Court, when this defect was brought to the notice of the trial Court.
7. The upshot of the above discussion is that it is not a fit case in which whole of the criminal proceedings be quashed, but while accepting this petition partly, I remand the case to the trial Court with the direction that the charge against petitioners 2 and 3 be framed afresh and thereafter he should proceed in accordance with law.