Amir Abdullah Khan petitioner and his son Barkatollah were accused of the murder of one Asadullah through F.I.R. No.120, dated 14-8-1989 of Police Station Daudkhel of District Mianwali.
2. Amir Abdullah petitioner was arrested and was consequently sent up to the Court of Sessions to face the trial but his son Barkatullah absconded and was declared a proclaimed offender.
3. It was after the entire prosecution evidence had been led at the trial against Amir Abdullah petitioner that it was brought to the notice of the learned Sessions Judge that Barkatullah proclaimed offender had since been arrested and it was consequently prayed that the trial against Amir Abdullah petitioner be stayed till the challan against Barkatullah accused was also received and thereafter, both the said accused persons be tried together for the offence allegedly committed by them.
4. The learned trial Judge was, however, of the opinion that the case of Amir Abdullah accused could be decided without causing any prejudice to the merits of the case against Barkatullah accused and in the circumstances, the learned Judge found that there was no reason to unnecessarily delay the trial against Amir Abdullah accused. In reaching this conclusion, the learned trial Judge was also influenced by the fact that in any case, no prejudice was likely to be caused to Amir Abdullah petitioner and a petition for the relief above--mentioned emanating from him was without cause.
5. It is no doubt true that the learned trial Judge could validly and legally proceed with the trial of Amir Abdullah accused-petitioner without awaiting the sending up of his co-accused.
6. But at the same time, it is also true that both the persons are accused of the same offence allegedly committed in the same occurrence; that the witnesses against these two accused persons are also the same and that Barkatullah accused had since, been arrested and there is no reason why the completion of investigation in his case, should take very long.
7. I am of the opinion that it will not only be more convenient for the learned trial Court to decide the guilt or the innocence of the two persons together but the same would also be more conducive to the interests of justice. The fact that no prejudice was likely to be caused to the case of Amir Abdullah who had petitioned the learned trial Court to decide his case together with the case of his co-accused and again who was the one who has filed this petition before this Court, is a consideration which is purely technical in nature.
8. It appears from the impugned order of the learned Sessions Judge that the trial against Amir Abdullah accused is complete but for the arguments which remain to be addressed.
9. I would, in the circumstances, direct that the learned trial Court should stay further proceedings in the trial against Amir Abdullah accused petitioner; should record the evidence against Barkatullah co-accused and should thereafter, simultaneously decide the fate of the two accused persons.
10. It is ordered accordingly.
11. From the record of this case it appears that Barkatullah accused was arrested sometime in the earlier part of the month of April and two months have already elapsed since the apprehension of this accused person. The Investigating Officer should not have taken longer than two months to complete the investigation and to submit his report under section 173 of the Code of Criminal Procedure.
12. In case the challan against Barkatullah accused has not already reached the learned Sessions Court, I would direct the officer-in-charge of the concerned police station, to submit the same before the concerned Magistrate without any further loss of time which, learned Magistrate shall expeditiously deal with the same in accordance with law.
13. This petition is, thus, allowed and is disposed of in the above terms.
S.A./A-1353/L