P L D 1968 Karachi 8 (PLP)

Held (on reference by the Additional Sessions Judge) that inasmuch as there had in fact been no committal proceedings in this matter the charge framed should be quashed. Setting aside the order of commitment as well as the charge, the High Court directed fresh committal proceedings ''to be held in accordance with law. Murtaza Hussain for A. A.‑G. for the State. Date of hearing : 9th May 1967. This is a reference by an Additional Sessions Judge, at Karachi recommending that the charge framed by Mr. Birjis Qadar then A. C. M. Karachi on 18‑7‑65 against the respondent in respect of offences under section 376/392/34, P. P. C. be quashed and a fresh committal inquiry be ordered for the reasons mentioned in the accompanying letter of reference.

2. Very briefly the facts giving rise to this matter are that on 23‑12‑57 at about 11 a.m. in the morning as the complainant Miss Jacqueline Odier, an Air Hostess of Air France, was boating in the China Cree near the Beach Luxury Hotel she was set upon by two fishermen who attempted to rap her and who robbed her of her spectacle case containing Rs.

9. The F. I. R. in respect of this incident was lodged by her at Jackson Police station Keamari at 2‑10 p.m. that same day. On 11‑2‑58 the Keamari Police presented a challan in the Court of the City and A. C. M. Karachi mentioning the names of the two culprits but showing them as absconders. Proceedings under section 512 were then instituted against them and Mr. Ali Jawed then City and A. D. M. Karachi examined the prosecution witnesses in this case. Some 8 years later in April 1966 respondent Allahdad was secured and placed before Mr. Birjis Qadar A. C. M. Karachi. Committal proceedings commenced before Mr. Birjis Qadar, but this learned Magistrate instead of complying with the provisions of section 512, Cr. P. C. accepted a speedy and worry‑saving device of disposing of these committal proceedings by merely stating in his committal order that the prosecution witnesses had either left the country or were untraceable and without attempting to procure the attendance before him of any one of the prosecution witnesses, save, perhaps the complainant Air‑Hostess herself or examining a single P. W. or Process Server to show P. Ws. were not available. Now this summary device is altogether unknown to the law and as pointed out by the learned A. S. J. it violates the provisions of section 512, Cr. P. C. and also of section 33, Evidence Act. It is for this reason that when this case came up for trial before the learned A. S. J., Karachi he declined to proceed with the trial but has made this reference to this High Court recommending that the charge framed by Mr. Birjis Qadar A. C. M. Karachi be quashed and a fresh committal inquiry ordered.

3. I have heard Mr. Murtuza Hussain Advocate on behalf of the State. With his characteristic thoroughness he has taken me through the facts and the law relating to this matter pointing out that this reference should be accepted. I agree that inasmuch as there has in fact been no committal proceedings in this matter the charge framed by Mr. Birjis Qadar A. C. M. Karachi should be quashed. Accordingly I allow this reference, set aside the committal order as well as the charge framed by Mr. Birjis Qadar A. C. M. Karachi and direct that committal proceedings in accordance with the law be held in this matter. The respondent is already on bail: he will continue to be on the same bail. The papers in this reference may now be returned to the Court from whence they came with the intimation that this reference has been accepted. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Order accordingly.