Bashir Ahmad, Zafar and Anwar respondents Nos.2 to 4 are the accused of Crime Case No.147 registered on 22-2-1996 at Police Station, Jaranwala under section 302/34, P.P.C. Bashir Ahmad and Zafar respondents Nos.2 and 3 have been arrested while Muhammad Anwar respondent No.4 has become a fugitive of law. The Area Magistrate at the petition of the police, proceeded under section 87/88, Criminal Procedure Code against Muhammad Anwar accused and thereafter sent up the case to the Court of Session. At present the case is on the file of Mr. Pervez A.I Chawala, Additional Sessions Judge, Faisalabad. He charged both Bashir Ahmad and Zafar accused/respondents Nos.2 and 3 on 9-7-1996 under section 302(a)/34, Pakistan Penal Code.
Thereafter some prosecution witnesses have been examined on 25-7-1996 and 1-9-1996.
2. Through the filing of this petition under section 561-A, Criminal Procedure Code Zafar Ahmad petitioner-complainant is desirous for the quashment of the proceedings conducted on 9-7-1996, 25-7-1996 and 1-9-1996 on the ground that it was incumbent upon the learned trial Court to procure the attendance of Muhammad Anwar absconder accused/respondent No.4 and in case of legal necessity to proceed under section 87/88, Criminal Procedure Code. According to the petitioner thereafter the trial could be started.
3. I have heard the learned counsel for the parties as well as learned Assistant Advocate-General.
Learned counsel for the petitioner argued that the Area Magistrate could not proceed against Muhammad Anwar respondent No.4 under section 87/88, Criminal Procedure Code and that after the case was sent up in terms of section 190(3), Criminal Procedure Code by him it was necessary on the part of the learned Additional Sessions Judge to proceed afresh to procure the attendance of Muhammad Anwar respondent No.4. On the contrary it has been argued on behalf of the State and the accused persons that before the case exclusively triable by the Court of Session is sent up to the Court of Session, all the ancillary proceedings are to be conducted at the end of the Ilaqa Magistrate and that there was no need to proceed afresh before the start of the trial by the trial Court to procure the attendance of Muhammad Anwar accused and to proceed under section 87/88, Criminal Procedure Code. At this stage I would express that it seems that Zafar Ahmad petitioner/complainant has not moved the learned trial Court to proceed under section 87/88, Criminal Procedure Code to the extent of Muhammad Anwar absconder accused/respondent No.4 before the start of the trial. This direction can be passed even today by this Court and the trial Court can give its verdict either way. However, I am tempted to express that would be nothing but wastage of time especially when the learned trial Court is proceeding with the trial and is recording the prosecution evidence. I, therefore, proceed to dispose of this matter on merits.
4. Learned counsel for the petitioner-complainant has rightly canvassed that without the presence of Muhammad Anwar respondent No.4 the trial cannot be processed with and conducted and even at the end of the trial Court all the efforts should be made to procure the presence of Muhammad Anwar absconder --accused through ordinary manner or coercive methods. Even if the proceedings in the matter have been conducted at the end of the learned Area Magistrate that is not an illegal act. However, it was also incumbent upon the trial Court to proceed in accordance with law to procure the attendance of Muhammad Anwar absconder-accused/respondent No.4.
To exemplify if an accused is admitted to bail before the challan is sent up to the Court of Session, his attendance has also to be procured by the trial Court i.e. The Court of Session. If an accused on bail becomes a fugitive of law the proceedings under section 514, Criminal Procedure Code are also to be conducted in addition to the proceedings to be taken under section 87/88, Criminal Procedure Code. The wisdom behind this aspect of the matter is that after the conclusion of the trial if the absconding accused is arrested and the trial is conducted the previous material can be used against him if any of the prosecution witnesses has expired. In case of failure on the part of the trial Court to proceed in this regard, in the aforesaid state of affairs, the arrested accused can take exception thereto during the trial. In short it is expressed and held that the appearance of an accused who is under arrest (inthe judicial lock-up), is on bail or is a fugitive of law is necessary before the trial Court when the trial commences. In this regard the bailable or non-bailable warrant of the absconding accused can be issued by the trial Court and the normal procedure can be followed or the coercive method can be adopted to procure his attendance. If the person becomes the fugitive from law it is obligatory on the trial Court to initiate the proceedings under section 87/88, Criminal Procedure Code. Without that the trial cannot be commenced even to the extent of the accused who are willing to defend the same by appearing before C the Court.
5. Consequently I accept this petition and quash the aforesaid orders. The result is that the trial Court shall proceed in accordance with law to procure the attendance of Muhammad Anwar accused/respondent No.3 and shall adopt all the methods thereof. After collecting all the material qua him, the proceedings shall be conducted afresh to the extent of the remaining accused persons who want to defend the suit. It means that the charge shall have to be framed afresh and the P. Ws. Shall be examined afresh thereafter. It follows that the de novo trial shall have to be conducted by the trial Court. In case Muhammad Anwar accused appears, the trial shall proceed as expressed above. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.