IN
THE HIGH COURT OF SINDH,
BENCH AT SUKKUR
Cr. Misc. Appln. No. S 33 of 2021
Cr. Misc. Appln. No. S 42 of 2021
Cr. Misc. Appln. No. S 54 of 2021
Date Order with
Signature of Honble Judge
Priority case
1. For
orders on office objection at flag A
2. For
hearing of main case
3. For
hearing of stay applications(in above matters)
16.09.2021
Mr. Achar Khan Gabol Advocate for
applicants in Crl: Misc. Appln.
No.S- 42/2021
Mr. Alam Sher Bozdar
Advocate for applicant in Crl: Misc. Appln. No.S- 54/2021
Mr. Amjad Ali Gabol Advocate holding
brief for Mr. Muhammad Nizar Tano
Advocate for applicant in Crl: Misc. Appln. No.S- 33/2021
Mr. Aftab Ahmed Shar, Additional PG
for State a/w ASI Hazoor Bux Chachar
of Police Station A Section, Ghotki
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O R D E R
AMJAD
ALI SAHITO, J;- By
this common order, the aforesaid three criminal miscellaneous applications are
being disposed of, as the same are arising out of the common impugned order
dated 06.01.2021 passed by learned Special Judge, Anti‑Corruption (Provincial),
Sukkur on the applications filed by the applicants
u/s 205 Cr.P.C, respectively, whereby seeking dispensing-with
their personal appearance before the trial Court in Crime No.22 of 2015 of
Police Station ACE, Ghotki for offences punishable
under Sections 409, 465, 468, 471, 477-A, 34 PPC R/w Section 5(2) Act-II of
1947.
2. At the very
outset, learned counsel for the applicants submit that the Investigating
Officer after completing the investigation filed challan
u/s 173 Cr.P.C before the learned Special Judge,
Anti-Corruption (Provincial), Sukkur, wherein names
of the applicants were placed in column No.2 in blue ink and final challan was filed, which was accepted. They further submit
that since the names of the applicants were placed in column No.2, as such they
filed applications u/s 205 Cr.P.C for dispensing‑with
their attendance as the accused were of the view that they are no more required
in the case, but such condonation of appearance was
not accepted and vide impugned order dated 06.01.2021, such applications were
dismissed. They further submit that it would be appropriate to set-aside the
impugned order and case may be remanded to learned trial Court for passing
appropriate orders they will not press the instant applications.
3. Learned
Additional PG appearing for the State submits that since specifically the
learned trial Court has not exercised the powers u/s 190 Cr.P.C,
hence without passing such orders, a person cannot be joined as accused in a
criminal case.
4. I have
heard the learned counsel for the applicants, learned Additional PG for the
State and perused the record. Admittedly,
after completing the investigation, the Invetigating
Officer filed the final report, on which the learned trial Court passed the
order Final challan accepted. Issue notice to
accused on bail. The perusal
of the final challan reflects that names of the
applicants are shown in column No.2 with Blue Ink and learned trial Judge has
also accepted the challan without mentioning the
names of the accused persons placed in column No.2, as such the applicants have
preferred their applications for dispensing-with their attendance, same was
declined without mentioning the fact that they are joined as accused or not by
exercising the powers u/s 190 Cr.P.C. In such circumstances,
the instant Criminal Miscellaneous Applications are allowed and the impugned
order dated 06.01.2021 is set-aside and the matter is remanded to learned trial
Court for passing a speaking order afresh, after providing an opportunity of
hearing to all concerned.
Judge
ARBROHI