1989 P Cr (PLP)

I have gone through the observations dated 5‑8‑1985 of my learned brother Mr. Justice Sajjad Ali Shah. Relevant portion is reproduced as under:‑

"In the circumstances, it is suggested that these twelve cases cited in the office note should be treated as Criminal Revisions and be placed in the Court according to roster with notice to A. G., Sind and accused persons for hearing and disposal according to law." The Honourable Chief Justice was pleased to direct action as observed by Mr. Justice Sajjad Ali Shah. In response thereof, notices were issued to the respondents/accused namely; Lal Khan and Mitho. Mitho as per endorsement of A.S.I. Dirgh Police Station, District Larkana on the process issued for 29‑2‑1988 is reported to have died, without furnishing any proof. It appears that on 13‑9‑1981 a challan was submitted in criminal case No. 84 of 1981 by the P.S. Kamber District Larkana in the Court of Resident Magistrate, Kamber under section 392/34, P.P.C. against three accused namely; Lal Khan, Mitho and Roshan. Lal Khan and Mitho were produced by the police in custody and Roshan was shown as absconding. The learned Magistrate released Mitho and Lal Khan on bail by his order, dated 27‑9‑1981. It further appears that the case was fixed from time to time on various dates but was adjourned mainly on account of the fact that on the said dates either ‑ both or either of the accused remained absent, on one pretext or the other. It also appears that mostly Mitho remained absent and ultimately the learned Magistrate had to issue non‑bailable warrants against him declaring him as proclaimed absconder, who was never apprehended. It may also be stated that Roshan has also remained absconder and was ultimately declared as proclaimed offender. The learned Magistrate on 7‑7‑1983, for the first time ordered the issue of summons to the witnesses on the date of hearing viz. 24‑7‑1983. It was reported by the police that the complainant had died. However, the summons were served on the two witnesses namely; Jumo and Ahmed Nawaz, who were also‑present in Court. On the said date Lai Khan was also present but the learned Magistrate, stating no reason whatsoever, adjourned the case to 20‑8‑1983. An order for the issue of summons to the remaining witnesses was also passed on that date. On 20‑8‑1983 the above‑said two prosecution witnesses were again present and so the respondent, Lai Khan, but the learned Magistrate being on administrative duty, the case was put off to 7‑9‑1983. On that date, the above said two P.Ws. were present and so the respondent Lal Khan was also present but the case was again put off to 25‑9‑1983 by the learned Magistrate, with no reason for adjournment shown in the Court diary. On 19‑10‑1983 Lal Khan was present but the two P.Ws. were absent and learned Magistrate put off the case on 26‑10‑1983. On the said date, the learned Magistrate passed the following order:‑

"Heard the arguments of counsel and P.S.I. for the State. The case is pending since 1981 and P.Ws. are not attending the Court since pretty long. Process had been issued many times through concerned S.H.O., but the P.Ws. have not appeared as yet. I, therefore, m the interest of justice stop the proceedings under section 249, Cr.P.C. and release the accused without pronouncing any judgment. However, the prosecution is at full liberty to bring the case on file after locating the whereabouts of the witnesses." It is, thus, obvious that the learned Magistrate stopped proceedings suo motu without any application made in this behalf by the respondent under section 245, Cr.P.C. and released the accused. On scrutiny of the record with the assistance of the learned A.A: G. and counsel for respondent, it appears that no summons to the said P.Ws., or the remaining P.Ws., were issued by the learned Magistrate or his Office for appearance on 19‑10‑1983 or on 26‑10‑1983, when the impugned order was passed. This fact alone is sufficient to justify the setting aside of the order dated 26‑10‑1983 referred to above. But, as reference shows, there, were as many as twelve cases of the like nature in which the learned Resident Magistrate appears to have passed similar orders under section 249, Cr.P.C. for want of service of summons on witnesses and in no case the process‑server was either examined by the Court or any coercive measure for production of witnesses was adopted, the matter calls for to laying down some guidelines for the learned Magistrate for the exercise of power under section 249, Cr.P.C. It is true that section 249, Cr.P.C. does empower a Magistrate First Class to stop proceedings in a criminal case before him, other than on a direct complaint, and release the accused without announcing judgment of conviction or acquittal. It is also true that section 249, Cr.P.C., as couched, is very wide in its terms but resort is to be made by the Magistrate in cases in which there are special circumstances which make it difficult or impossible to proceed with the case in normal course, as provided under the Code of Criminal Procedure. Therefore, the power, as understand is to be exercised sparingly and in exceptional cases of hardships to the accused. However, the guiding factor should be securing of justice by passing that order under section 249, Cr.P.C. so as to relieve the accused of undue hardships from appearing in Courts on every date of hearing, but not witnesses forthcoming, in spite of adopting all measures for their production in Court, as provided under the Criminal Procedure Code. In all such cases a duty is cast on the Presiding Officer, firstly; to satisfy whether the, summons have been issued to the witnesses, if returned unserved see the endorsement of the process‑server. If the circumstances so warrant, to adopt coercive measures as it is noticed in the present case that no summons to the witnesses to appear on 19‑10‑1983 and 26‑10‑1983 was at all issued, what to say of, adopting any coercive measures for production of the witnesses, secondly, in the' case of non‑service upon the witnesses repeatedly, the process‑server should be examined to see if there is any omission on the art of the police to serve the summons on the witnesses and thirdly, in cases were the accused is in custody,; his case may be considered for granting bail on account of undue delay, due to non‑appearance of the witnesses persistently. It is noticeable that in the instant case the two respondents were already on bail. Even in the case of hardships to the accused it should be borne in my mind that the accused are on bail or not, if they are already on bail then there seems to be no valid reason except in exceptional cases to release the accused without conviction or acquittal. It is also noticed that the two out of three accused were already declared proclaimed absconders and only one accused, namely Lal Khan was present in Court. He also remained absent on as many as seven dates viz. 1‑3‑1982, 3‑6‑1982, 21‑10‑1982, 5‑12‑1982, 17‑1‑1983, 29‑3‑1983 and 21‑4‑1983. The learned Magistrate does not appear to have taken any action against the surety forfeiting the bond. On the other hand, he had always been showing kindness to the accused on all the above‑mentioned dates by condoning his absence invariably. In the facts and circumstances of the case as mentioned above, it cannot, by any stretch of imagination, be said that it was a case of any hardship to the accused Lal Khan, what to say of any undue hardship. There was no justification by any canon of justice or equity to pass the impugned order by the learned Magistrate. The order dated 26‑10‑1983, is, therefore, set aside and rehearing of the case is ordered, in accordance with law, against respondent Lal Khan and Mitho about whom the police has failed to furnish any 'proof of his death, though directed by this Court. The respondent/accused Lal Khan is directed to appear in the Court of the learned Magistrate on 12‑1‑1989. In case the respondent/accused fails to appear before the learned Magistrate on that date a non‑bailable warrant is to follow. The R&P be sent back to the trial Court alongwith a copy of this order immediately. The learned A.A.‑G. submits that it will be advisable if a copy of this order be sent to the Chief Secretary, Government of Sind. The A.R. of this Court is, therefore, directed to send a copy of the above order to the Chief Secretary, Government of Sind to consider the advisability of withdrawing judicial power from the learned Magistrate. A copy of the order be also sent to the Honourable Chief Justice for information with reference to his direction dated 24‑2‑1985. M.Z.S./S‑360/K????????????????????????????????????????????????????????????????????????????????? Re‑hearing ordered.