SHABIR AHMED Versus State

ORDER

SYED ZAKIR HUSSAIN, J .---This Criminal Miscellaneous Application is presented by the applicant, praying for an order directing the learned trial Court to keep the pending Sessions Case No. 84 of 2009, St. v. Barkat Ali and others, arisen out of Crime No. 78 of 2007, of Police Station A-Section Kandhkot, in abeyance and release the applicant, who is accused therein, on the basis of the facts that the Court has taken the cognizance of the charge sheet, based on the aforesaid F.I.R., of the complainant, namely, Haji Saifal Bhayo, against the applicant and others, for the offences punishable under sections 302, 148,149, 109, P.P.C. The Court framed the charge against the applicant, and on his plea of "not guilty", issued process to the prosecution witnesses, and examined the Investigating Officer and the medical officer, while the private witnesses namely, Haji Saifal (complainant), Abdul Raheem, and Ali Hassan, against whom the process were issued, could not be served for want of their fresh address, as they were found to have shifted from their given address to some unknown place. The process server submitted such report along with the un-served process and the statements of the locality people supporting his such report. The Court examined him as a Court witness to such effect. He deposed the facts in corroboration of his report and produced the same and other necessary record, enclosed therewith, in such process of evidence. His statement went un-challenged by the prosecution. The applicant filed an application seeking an order of abeyance of the proceedings and release of the applicant, for the reason that the main private witnesses of the case had become un-traceable in the light of the position highlighted above. The learned trial Court ordered publication of the process against such prosecution witnesses, in daily "Kawish", and simultaneously ordered notice on such application of the applicant. The said publication of the process against the prosecution witnesses for procuring their attendance by their appearance for the purpose in question, was made accordingly. The learned counsel filed his statement together with the copy of the same, and pressed his application, referred to above. Despite the fact that the Court found none of the said prosecution witnesses as present in response to the said publication of the notice for such appearance, it went on issuing process (N.B.W), against such prosecution witnesses, and such exercise has repeatedly been made in the matter, and finally, the Court decided the aforesaid application by an order dated 5-10-2010, whereby it has rejected the same. The perusal of the order shows no legal reason for such rejection of the application. It simply shows, observations that the offence is heinous and investigation material carries evidence against the applicant/accused and there appears enmity between tribes of the parties, and that the bail application (s) of the applicant, stood turned down in the matter, throughout, upto the Hon'ble Supreme Court, and therefore, the request to keep the matter in abeyance and the application made in that regard were out of wisdom or logic and hence, the same merits dismissal.

2. I have heard the learned counsel for the applicant, learned State Counsel and perused the record. The learned counsel repeated the facts, as already stated above, and on legal point; he is of the view that his application merits no dismissal order, but an order granting the same. He has however, failed to point out any provision of law supporting his request of keeping the matter in abeyance, particularly, in a sessions trial case.

3. The learned State Counsel does not support the request of the learned counsel on same footings. He is also of the view that there is no provision for keeping a Sessions case in abeyance. He however, pointed out that section 344, P.P.C. provides powers to the Court to postpone the proceedings, but with an order of remanding the accused to jail. He elaborated his such contention by having added that in magisterial trial such postponement will not exceed fifteen days, whereas in sessions trial cases, though there appears no such time limit, but reasonably, since there could be no remand to judicial custody beyond fifteen days in one attempt, same time limit, is open to be attached with the session trial cases, as a matter of rule of prudence, while a High Court according to the learned State counsel, may however, postpone its proceedings under the said provision of law to an indefinite date or adjourn the matter sine die. He further contended that in the instant case the learned Judge was to proceed further, after he had examined the process server to the above effect, and issuance of process to the same prosecution witnesses, on the same address, where they are not found for the reason already discussed, above, with reference to the statements and report of the process server, which being criminal piece of evidence, carries weight and deserves to be acted upon for all practical purposes, was nothing but an abuse of process of law, which is against the policy of the law and that of the system. According to the learned State counsel, the accused is presumed to be innocent, unless proved guilty and the burden to prove his guilt to the offence he is charged with is on the shoulder of the prosecution. The Court being neutral and referee, being entrusted with the task of dispensation of justice, is duty bound, not only to do justice, but to cause it transparently and manifestly, to be made visible, not only to the accused, but to the society. In the instant case, the learned Judge could have closed the side of the prosecution after having examined the remaining prosecution witnesses, if any, available therefor, and decided the fate of the case on the basis of the evidence already available to it, being the material of the prosecution, and that of the defence, if any, but the exercise to keep on issuing process to the prosecution witnesses, who have once stood proved by the prosecution itself, to have become unprocurable, was not proper for a variety of reasons, such as there appears no law to support the same; the practice is otherwise than what is done to such effect; and there was an abuse of process of law on the part of the Court itself, for there was no need to issue the process of the Court to the prosecution witnesses, referred to above, on the given address, which had been left on their part, as per the evidence of the process server; and there was no positive hope to achieve any productive result out of such exercise of issuance of such process repeatedly, particularly for an indefinite period, which being not the purpose of law, can hardly be appreciated to be a positive step even from prosecution view-point, which too, does not claim any latitude or favour not permitted by the law and norms of justice on the one hand and the same is scandalous not only to the accused but to the society, as well, on the other. Lastly, the learned State counsel states that the provisions of section 265-K, Cr.P.C. empowers the Court of Session seized of a sessions trial of like nature, to acquit the accused at any stage, if on the basis of the available material, the Court finds no probability of such accused being convicted for any offence, in such matter, in the interest of justice. The learned trial Court has neither exercised the said powers, nor proceeded to close the side of the prosecution, after examining the remaining witnesses, but confined its proceedings only to the extent of its attempt (s) of acquiring or procuring the evidence of the said private prosecution witnesses, which being an outcome of misconception of law and practice and on improper application of judicial mind, is nothing but a source of frustration of justice.

4. The magisterial trial case is covered by the Chapter XX of the Code of Criminal Procedure, providing the powers under section 249 thereof, to the Court to stop proceedings and order release of the accused, where it finds that the prosecution witnesses are not attending the Court, or not likely to be produced in the near future. There is no corresponding provision in the Chapter XXII-A, of the Code of Criminal Procedure, which deals with the trial of the case by Sessions Court and the High Court. The legislature seems to have purposefully provided no such provision and desired the disposal of the case, once for all, in either way, on the basis of the material as could be made available in terms of section 265-F, which runs as under:--

"265-F. Evidence for prosecu-tion .---(1) If the accused does not plead guilty of the Court in its discretion does not convict him on his plea, the Court shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution:

Provided that the Court shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.

(2) The Court shall ascertain from the Public Prosecutor or, as the case may be from the complainant, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it.

(3) The Court may refuse to summon any such witnesses, if it is of opinion that such witness is being called for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by the Court in writing.

(4) When the examination of the witnesses for the prosecution and the examination of the witness for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence.

(5) If the accused puts in any written statement, the Court shall file it with the record.

(6) If the accused, or any one of several accused, says that he means to adduce evidence, the Court shall call on the accused to enter on his defence and produce his evidence.

(7) If the accused, or any one of several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing the Court shall issue process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by the Court in writing.

5. The subsection (1) of the aforementioned provision of law obviously indicates the legal position resolving the controversy or the issue in hand. The same provides that the Court shall take evidence of the prosecution as could be made available on its part to the Court for such purpose. The word "may" used in the provision shows a discretionary state and not mandatory in context and perspective thereof, yet as a matter of settled law, it is the duty of the Court to use its all powers given by the Code of Criminal Procedure to secure entire available evidence whether requested for by the prosecution or not, or on its own, to serve the purpose of justice in the matter, but where despite its such efforts including issuance of compulsive process for securing evidence and or ensuring attendance of prosecution witnesses, the Court finds no productive result, owing to show of blunt negligence and recalcitrant/unmanageable conduct of the police in the matter of execution of the process of the Court, or otherwise, it will, then, be left with no other option but to acquit the accused for want of evidence, so as to avoid the abuse of process of law and frustration of justice, as a matter of its duty thereagainst.

6. Consequently, I, in keeping with what has been discussed above, and being agreed with the views expressed by the learned counsel for the applicant, and learned State counsel as well, am left with no option but to hold that the impugned order is maintainable to the extent that the prayer for an order to keep the case in abeyance was not covered by any law and hence the trial Court has rightly rejected the application, but the proceedings confined to the exercise referred to above, being fruitless and an abuse of process of law, are not open to be termed as legal. The learned trial Court is therefore, directed to side line the matter of procuring the evidence of the said private prosecution witnesses, and proceed further with the remaining witnesses and decide the case within one month next on day to day basis, thereafter. Before proceeding with the matter as directed above, the learned trial Judge is directed to consider the application of section 265-K, Cr.P.C, in the matter, either on his own or on application of the applicant/ accused, so as to avoid further abuse of process of law, if the circumstances so warrant in the interest of justice.

7. The application stands disposed of in the above terms.

N.H.Q./S-48/K Order accordingly.