' The question raised in this application filed under section 561-A, Cr.P.C. May be stated in a very few words, but the answer is by no means free from difficulty.
2. Deceased Abdul Lateef resided in a but situated near Deluxe Plaza, Block No,7, Federal 'B' Area, Karachi. On 6-2-1985, at about 9 p.m. Or 9-30 p.m. Two persons who were Sindhi by their appearance came to deceased Abdul Lateef and remained with him for few minutes. After 10 or 15 minutes deceased Abdul Lateef went to see them off when they threw acid on his face causing severe burns to him. The commotion attracted Muhammad Basheer, a nephew of deceased Abdul Lateef who resided near the place of occurrence, and he was apprised of the incident by deceased Abdul Lateef. Muhammad Bashir went to fetch a taxi car, but it was not available. On return he came to know that deceased Abdul Lateef who had gone unconscious was taken to Abbasi Shaheed Hospital, Karachi, by his brother Muhammad Idris. On the same day Bashir Ahmad A.S.I. Of Joharabad Police Station recorded the statement of complainant Muhammad Bashir under section 154, Cr.P.C, which was subsequently incorporated in 154, Cr.P.C. Book maintained at Joharabad Police Station. On 9-2-1985 deceased Abdul Lateef regained senses and his 161, Cr.P.C.
Statement was recorded by Bashir Ahmad A.S.I., in which besides others, he implicated his brother Bahar Qureshi, the applicant No,1, his previous wife Mst. Nazeeran, presently married to Bahar Qureshi, the applicant No,2, and his son Dilshad, the applicant No,3, out of whom applicants Bahar Qureshi, and Mst. Nazeeran were seen in a car at the place of incident just before the acid was thrown on the face of deceased Abdul Lateef. In this"statement deceased Abdul Lateef had also disclosed the motive of the case by stating that these applicants wanted to take away his daughter Mst. Kulsum born from Mst. Nazeeran, the applicant No,2. On 14-2-1985, deceased Abdul Lateef died in the hospital and consequently section 302, P.P.C. Was added in the F.I.R. After usual investigation the present applicants were sent up to stand trial. Accused Ali Hassan was prosecuted in absentia and he is still absconding. At the trial the prosecution. Examined complainant Muhammad Bashir (P.W.1), Muhammad Aziz (P.W.2) and Muhammad Mujahid P.C.
(P.W.3). At this stage an application under section 265-K, Cr.P.C., was made on behalf of applicants which was dismissed by learned Additional Sessions Judge (Central) Karachi, on 29-9-1991, with the following order:-- "Heard arguments. The learned defence counsel has submitted that there is no evidence on record and further evidence will not improve the case of prosecution. The learned A.P.P. Has submitted that there is evidence against the accused and further I.O. Is available but due to some duty is not present. His evidence is remaining.
' In the circumstances I reject the application at this stage. Issue summons to I.O."
3. It is in these circumstances that the applicants have invoked the inherent jurisdiction of this Court. During the pendency of these proceedings the trial Court examined Basheer Ahmad A.S.I.
(P.W.4), and Dr. Kamaluddin (P.W.5).
4. I have heard Mr. Mumtaz Hussain Shah, learned counsel for the applicants and Mr. Habib-ur- Rasheed, learned counsel for the State. I have also gone through the record of the case carefully.
5. It is contended on behalf of applicants that although the case was registered as far back as the year 1985, but till today out of seventeen witnesses the prosecution has examined only five witnesses, while the remaining are not available and this delay in disposal of the case amounts to an abuse of the process of law. The question of delay, as a ground for quashment of proceedings, was examined by the Supreme Court in the case of M.S. Khawaja v. The State reported in PLD 1965 SC 287, wherein it was observed:-- "Limitation does not apply to criminal prosecutions, and it is also inappropriate to examine questions of delay through the actions of the Government, or the prosecution authorities, as if they gave rise to equities, on the same footing as in a civil matter inter partes. Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the State. It can only be in a very rare case that a superior Court acting under its inherent power 'to prevent abuse of the process of any Court or otherwise to secure the ends of justice', would deem it appropriate to act so as to place an alleged offence outside the operation of the criminal law, on incidental grounds such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law."
6. The scope of section 561-A, Cr.P.C. Was again considered in the case of Ghulam Muhammad v.
Muzammal Khan and 4 others, reported in PLD 1967 SC 317, wherein it was held:-- "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence."
7. The case of the prosecution mainly rests upon dying declaration made by deceased Abdul Lateef on 9-2-1985 in presence of Bashir Ahmad A.S.I. (P.W.4) who has produced it (Exh.18), in which deceased Abdul Lateef has implicated all the three applicants, who are closely related to him, to have hand in this crime. The learned counsel for the applicants has tried to assail this evidence on various grounds and in doing so he has placed reliance upon number of authorities, but I do not find it necessary to discuss these authorities at this stage, because it is for the trial Court to appraise the evidence and to determine whether such evidence produced by the prosecution can, or cannot be considered to be sufficient to establish the guilt of accused/applicants. It may be added that if a dying declaration is found to be genuine and true, it can by itself form a satisfactory basis for conviction. No hard and fast rule of general application can, however, be laid down and each case has to be examined by taking into, consideration the surrounding circumstances attending to it. The evidence of dying declaration was not before the learned Additional Sessions Judge when he passed a very brief and sketchy order on the application made under section 265- K, Cr.P.C. And this Court cannot embark upon detailed examination of the evidence led by the prosecution upto this time.
8. The perusal of the record further reveals that process serving staff of the concerned police station has not taken serious efforts to procure the attendance of the witnesses. However, it is entirely for the trial Court to close the side of the prosecution if there is no possibility of securing the attendance of the remaining witnesses and then decide the case after appraising the evidence available on record and evaluating the circumstances attending to this case.
9. The learned counsel for the applicants has also invited my attention to the fact that the parties who are closely related to each other had in fact compromised and an attempt was made for the withdrawal of this case under section 494, Cr.P.C. But without any result. The offence under section 302, P.P.C. Has now become compoundable with permission of the Court and if the parties have really patched up their difference it is not difficult for them to move an application under section 345, Cr.P.C. Before the trial Court.
10. After a careful and anxious study of the case-law available on this subject, and of the evidence adduced by the prosecution upto this time, I have come to the conclusion that the present application filed under section 561-A, Cr.P.C. Has got no merits and is dismissed accordingly.