P L D 1955 Sind 227 (PLP)

VELLANI, J.‑This is a committal proceeding pending in the Court of the Sub‑Divisional Magistrate, Nawabshah upon a case against Piru who was challaned on 10th December 1947 before the joint Sub‑Judge and First Class Magistrate, Naushahro, and a case against Haji who was challaned on 8th April 1948, before the First Class Magistrate, Naushahro, in respect of an offence under section 395/342 P. P. C. committed on 21st November 1947, at which no accused was identified and of which no person was accused in the F. I. R. The committal proceeding was brought to the notice of Constantine, C. J. who referred it to this Division Bench to consider the question whether adjournments had been granted in accordance with Judicial principles. Briefly stated the history of the case is as follows :‑ The case against Piru was transferred from the joint Sub‑Judge and First Class Magistrate, Naushahro to .the First Class Magistrate, Naushahro on 10th March .1948 and Haji was challaned before him on 8th April 1948. On 15th April 1948, Piru was present on bail but Haji was not produced by the jail authorities. Witnesses were present but the case was adjourned as the Magistrate of the Court was out and the Public Prosecutor was absent. The case was then transferred from the First Class Magistrate, Naushahro to the Special Magistrate, Moro by 28th April 1948, but it did not proceed there and by 23rd July 1948 it was transferred to the Resident Magistrate, Nawabshah. The case remained with the Resident Magistrate, Nawabshah till 17th June 1950. Thereafter it was transferred to the joint Sub‑Judge and First Class Magistrate, Hyderabad and it remained with him from 4th July 1950 to 24th September 1953. It was again transferred to the Sub- Divisional Magistrate, Nawabshah by 26th October 1953, and was still pending in his Court in March 1954 when the case was brought to the notice of this Court. The case did not proceed at all before the Resident Magistrate, Nawabshah mainly because accused Haji, who was in custody, was not produced in Court although accused Piru attended on all the dates of hearing. The case was before him from 23rd July 1948 to 17th June 1950, and the question arises whether the Resident Magistrate, Nawabshah ought not to have proceeded with the committal proceeding as against accused Piru. In Billinghurst v. Meek (I L R 49 Cal. 182. at p. 186.) Teunon and Suhrawardy, JJ. observed :‑ "But the petitioner has been under arrest and the grave charges preferred have been hanging over him from the 1st September 1920, and we are not of opinion that the absence of a co‑accused, even the principal accused, and the desirability from many points of view of a joint trial which is conceded by counsel appearing for the petitioner, are sufficient reasons for the further postponement of proceedings". The adjournments granted by the Resident Magistrate. Nawabshah to procure the attendance of accused Haji over a period of 2 years were against judicial principle. The case remained with the Joint Sub‑Judge and First Class Magistrate, Hyderabad from 4th July 1950 to 24th September 1953. On 11th August 1950 he examined three witnesses Lal Khan, Faiz Muhammad and Karimdad, but on 1st September 1950 the Public Prosecutor stated that he had not yet received police papers and the F. I. R, was not available to the Court. On 18th November 1950 he examined one witness Alan and a true copy of the F. I. R. was exhibited. On 20th January 1951 he examined two witnesses Ahmed Khan and Tai Muhammad. On 28th April 1951 he examined one witness Haji Ismail mashir. On 1st September 1951 summonses were ordered against Government servants who were witnesses. On 26th October 1951 he examined two witnesses Haji Allahbux mashir and Hussain. On 4th January 1952 he examined two more witnesses Faiz Muhammad tailor mashir and Muhammad Ibrahim also a mashir. On 5th January 1952 he examined S. I. P. Muhammad Bakhsh and exhibited true copies of two mashirnamas. At this time three witnesses were still left unexamined and they have not yet been examined. He ordered bailable warrants to issue against the remaining prosecution witnesses for the first time on 26th January 1952 and thereafter not till 31st January 1953. The case came up before him for the last time on 24th September 1953. In Jehangir v. Gangaram (10 S L R 148 at p. 154.) Hayward, J. C. said that the granting of frequent and lengthy adjournments resulted in a travesty of the prompt procedure contemplated by the Cr. P. C., and that frequent adjournments amounted practi cally to a denial of justice. In Ali Sher v. Mir Muhammad (26 Cr. L. J. 958.) Kennedy, J. C. and Aston, A. J. C. referred to section 344 Cr. P. C. and the explanation thereto, and held that if the witnesses were not in attendance the complainant had no right to insist upon an adjournment to examine them because although such an adjournment was a reasonable cause within section 344, a reasonable cause for adjournment is not in itself sufficient, there being a discretion left in the Magistrate whether he should grant an adjournment in the circumstances before him. In Motiram Jasamal v. Emperor (A I R 1943 Sind 10.) Weston and Tyabji, JJ. reached the same conclusion. In Rash Behari Karury v. Corporation of Calcutta (A I R 1926 Ca1. 102.) Newbould and Mukerji, JJ. adverted to the adjournments which had been allowed and observed that the prosecution had in that case been cherishing an idea that it was at the sweet will of the prosecution to go on with the case or get it adjourned, and the orders of the Court had tended to foster the idea. In Agha Nazarali v. Emperor (A I R 1941 Sind 186 at 187.) Davis, C. J. and Weston, J. said " . . . . what the law contemplates is due diligence and impartiality in the prosecution of criminal cases. It is not the law that a criminal case should linger long". Indeed the Court must be impartial and it is incon ceivable that it would have granted the adjournments it gave to the prosecution to examine its witnesses to the accused to examine their witnesses. In Emperor v. Muhammad Ibrahim and others (A I R 1942 Cal. 219 at 221.) Derbyshire, C. J. and Bartley, J. said, "The Policy of criminal law is to bring persons accused to justice as speedily as possible so that if they are found guilty they may be punished and if they are found innocent they may be acquitted and discharged". The adjournments granted are in grave disregard of this policy. The case has remained with the Sub‑Divisional Magis trate, Nawabshah from 26th October 1953 to 1st March 1954 and no progress has been made. On some hearings accused Haji was not produced from Jail and till 1st March 1954 the Public Prosecutor had not received the case papers from the police. No one knows when the prosecution propose to end the committal proceedings. It is hardly probable that any Court would rely upon evidence as to identity of accused Piru and Haji whose names were not mentioned in the F. I. R. when the evidence is given nearly seven years after the commission of the crime. We therefore quash the proceedings as was done in A I R 1926 Cal.

102. A H. Proceedings quashed.