Syed Qabool Muhammad Shah vs The State
This criminal miscellaneous application arises from a criminal trial in which the applicant faced charges under Sections 302 and 324 of the Pakistan Penal Code 1860 pursuant to an FIR registered in 2004. The core legal question concerned the legal consequence of the prolonged failure and deliberate avoidance of the complainant and key injured witnesses to appear and record their evidence over a span of fourteen years since the framing of the charge. The Sindh High Court held that the persistent refusal of the material witnesses to appear in court despite summons, public notices, and undertakings given to the Supreme Court demonstrates that the prosecution has no viable evidence and that the complainant is avoiding cross-examination. The Court laid down the principle that an unexplained and inordinate delay spanning over a decade caused by the non-appearance of essential witnesses warrants setting aside adverse trial court orders, allowing the application, and acquitting the accused due to lack of prosecution evidence.
- What is the legal effect on a criminal trial when the complainant and main injured witnesses continuously avoid appearing in court to depose for over a decade?
- Can a trial court order the arrest of independent material witnesses to compel their attendance for recording evidence?
- Whether prolonged failure of the prosecution to produce essential witnesses warrants setting aside trial orders and acquitting the accused?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
1. NAZAR AKBAR, J.--- The applicant is facing trial in FIR No.18/2004 under Sections 302 and 324, P.P.C. registered at P.S Balida, Hyderabad on 10.5.2004. The FIR was lodged by one Qazi Talmiz @ Taani. The accused was arrested and after two years imprisonment he was released on bail. However , meanwhile challan was submitted on 26.5.2004 and charge was framed on 1.2.2010. Since then the complainant and the main witnesses who were allegedly injured are not appearing in Court to record their evidence. Despite repeated efforts by the prosecution, the complainant has refused to appear in the witness box and the alleged injured in the FIR has also refused to appear in the witness box. In the last 10 years after framing of charge the failure of the prosecution to produce complainant and the injured can only mean that prosecution has no evidence. The avoidance of complainant to appear in Court means he knows he cannot withstand the test of cross-examination. It is strange that for the last ten years the prosecution has failed to produce main witnesses, viz. the complainant and injured who are readily available at their addresses and even notice summons / notices were published in Dawn newspaper to inform the complainant to appear in Court for recording of his evidence but he never turned up. This is one aspect of the case and other aspect of the case is that on the one hand the complainant has avoided to appear in the witness box and on the other hand he has contested the application of transfer of the sessions case from Hyderabad to Karachi, which was allowed. The complainant has challenged the transfer order before Hon'ble Supreme Court, but his appeal was dismissed by order dated 23.12.201 1. The complainant has approached the Hon'ble Supreme Court after public notice for him to appear in the witness box. Therefore, the prosecu tion has undertaken before the Hon'ble Supreme Court that complainant Qazi Talmiz @ Taani will be produced along with two witnesses before the trial Court on the next date of hearing. Even from 2011 he never turned up and the prosecution still feels that he will ever appear in Court. He did appear only once in 2015 for taking a date and after taking date he never turned up.
2. Complainant in 2015 also filed an application for transfer of the case, which was dismissed on 13.4.2015 and he again went to Hon'ble Supreme Court but did not press the petition before the Hon'ble Supreme Court. The conduct of the complainant indicates that in fact he has no evidence against accused that's why he is avoiding to appear in the witness box and prosecution is dragging the case on frivolous grounds. Learned Prosecutor has read the impugned order in which he emphasized that the Trial Court has ordered arrest and production of above named witness being material eye-witnesses. I am unable to appreciate that under what provisions of law arrest of independent witness can be ordered if a witness is brought in chain he cannot be treated as free and impartial witness. Be that as it may, failure of the complainant to appear in witness box for the last 14 years despite being available around the Court is enough to dismiss the complaint and acquit the applicant I accused. Therefore, impugned order is set-aside and this Crl. Misc. Application is allowed as prayed.