Mst. SHAMIM alias MARIYUM vs D.I.-G. EAST ZONE and 3 others
This matter arises from a constitutional petition impugning an order passed by a Judicial Magistrate refusing to issue warrants against absconding accused persons on the ground that the police failed to arrest them during investigation. The core legal question concerns the propriety of a trial court refusing to invoke coercive processes under the Code of Criminal Procedure merely because police efforts during investigation proved unsuccessful. The Sindh High Court held that the trial court erred in failing to exercise its statutory powers, clarifying that provisions relating to warrants and proclamation and attachment under the Code of Criminal Procedure must be exhausted before placing a case on the dormant file. The Court laid down the principle that trial courts must actively utilize legal mechanisms such as warrants and attachment proceedings against absconders rather than refusing process, and may involve higher police officials to ensure compliance.
- Whether a trial court can refuse to issue warrants against absconding accused persons solely because the police failed to arrest them during investigation?
- What coercive legal procedures must a trial court exhaust before placing a case on the dormant file?
- Can a trial court correspond with higher police officials to ensure the execution of warrants against non-compliant police officers?
- Section 75, Code of Criminal Procedure 1898
- Section 87, Code of Criminal Procedure 1898
- Section 88, Code of Criminal Procedure 1898
ORDER
' AAMIR RAZA NAQVI, J.---Granted.
2. Mr. Saleem Akhter, Additional P.-G. Waives notice of this petition. Practically through this petition order dated 16-12-2013 passed by learned IVth Civil Judge and Judicial Magistrate, Malir Karachi has been impugned. Through such order after the challan the learned trial Court refused to issue warrants on the ground that when police could not arrest the accused persons during investigation they would not be A arrested by the same police. The learned trial Court ignored the provisions of law which give extra powers to the Courts of law available in the Criminal Procedure Code. Such powers include attaching the properties under sections 87 and 88, Cr.P.C. In fact the trial Court has refused to exercise powers by not issuing warrants and adopting procedure provided under sections 87 and 88, Cr.P.C. Available to the said Court under the law. The trial Court has relied on a case PLD 2001 Karachi 211. Mr. Saleem submits that the case law relied by the learned trial Court is not applicable in this case as in this matter a fresh case has been put on dormant which is against the scheme of law. The case which has been referred by the trial Court deals with the situation in which co-accused who was already behind the bars was kept waiting till the proceedings under sections 87 and 88, Cr.P.C. Are completed against the alleged absconder. In the said case the practice of keeping the arrested person waiting for the trial on account of proceedings against co- accused person under sections 87 and 88, Cr.P.C. Was disapproved which is not the case in hand.
Learned trial Court should exercise powers available to it under sections 75, 87 and 88, Cr.P.C. If those proceedings fail only then the case could be kept on dormant file. It is further observed that in the instant case no undue haste should be adopted and proper efforts should be made to arrest the accused persons. In case of non-compliance by the police concerned, the Court may write B to the higher officials for getting issued necessary directions from the superiors of the police officials who are not complying with the order of court.
' With these observations the above petition is disposed of by consent.