ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
Crl. Revision.Appl.No.S- 161 of 2014.
DATE ORDER WITH SIGNATURE OF JUDGE
Date of hearing: 12.12.2014.
Date of order: 02.01.2015.
Mr. Tahir Nisar Rajput, Advocate for applicants.
Syed Meeral Shah, D.P.G. for the State.
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SALAHUDDIN PANHWAR, J: Through instant Revision Application, the applicants have challenged the legality of the orders dated 06th November 2010 and 14th December 2013 passed by learned 2nd Additional Sessions Judge, Hyderabad in Direct Complaint No.46 of 2008 “Re-Muhammad Bakhsh V. SIP Ahmed Saeed & others’, whereby the direct complaint was brought on file, consequently, B.Ws were issued against accused and Direct Complaint was ordered to be kept in abeyance, respectively.
2. Facts, giving rise to the instant revision, are that respondent No.1 / complainant filed a complaint against the present applicants for offence U/s 17(3) Offence against property (Enforcement of Hudood) Ordinance, 1979, 451,506(2),324,504,147,148,149 PPC r/w Section 156 of Police Order, 2002. It is pleaded in the revision that because of registration of the case the applicants / accused were suspended and their salaries were stopped. However, the respondent / complainant and his witnesses did not appear despite repeated process issued by the learned trial court. As a result of such attitude of the respondent No.1 (complainant), the learned trial court judge ordered the case to be kept in abeyance with direction to the applicants / accused not to appear until re-summoned, such order was passed on 14.12.2013 which is impugned in the instant revision. It is also claimed by the applicants that their salaries were restored but they are still under suspension because of pendency of the above said direct complaint as the same has not been finally disposed of.
3. Learned counsel for the applicants, inter alia, argued that the order of taking cognizance was not legal, valid and proper hence the applicants are entitled for their acquittal. He next submitted that keeping the case in abeyance would amount to keep the applicants under constant threats, which practice cannot be legally approved. He concluded while praying for acquittal of the applicants of the charge.
4. On the other hand, learned Asstt. A.G, opposed the maintainability of the revision petition while insisting that no illegality or material irregularity has been pointed out in the order, impugned.
5. I have heard the arguments of respective side (s) and have also examined the available material.
6. The revision to extent of the challenging the order of taking cognizance is not maintainable as same is without first approaching to the trial court, hence prayer to that extent is not sustainable.
7. Let’s examine the legality of the revision against the order of keeping the case in abeyance. At the very outset, it would be significant to endorse here that word ‘keeping a Sessions Case in abeyance’ is not recognized by the Code of Criminal Procedure, nor the Code provides any mechanism to cope up with a situation, where the complainant and his witnesses do not appear before the Sessions Court inspite of coercive measures adopted to procure their attendance as they concealed themselves in such a manner that there remains no probabilities of their being served in near future. This gives rise to a proposition that:
Whether in such like situation the trial of the accused persons should continue for an indefinite period?
At this juncture, it is germane to observe that the terms ‘fair trial’ and ‘justice’ are the terms on which whole structure of ‘criminal administration of justice’ rests. These term (s) do not cause any discrimination in ‘prosecution/complainant’ and ‘defence/accused’ therefore, the Code provides equal opportunity to both sides during ‘trial’ . Further, under the scheme in ‘criminal administration of justice’ the accused has always an edge on over the prosecution till determination of his guilt because during such process he is to be presumed ‘innocent’ and a single reasonable doubt can be sufficient to earn him acquittal.
8. It is worth to refer here that trial commences after framing of the charge. The provision of Section 265-F of the Code reads as:
265-F. Evidence for prosecution (1) If the accused does not plead guilty or 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.
The reading of the above provision shows that the word ‘shall’ has been used which makes it mandatory for the ‘Court’ to first hear the complainant (if there is any) and to take all such evidence as may be produced by the prosecution. Only after such mandatory course, there comes the turn of the accused which too after closing of the side of the prosecution. Till such time the accused has no right to lead any evidence to prove his innocence because the material, collected by the prosecution or that in shape of Preliminary Enquiry may be sufficient to form an opinion for taking cognizance, but once cognizance is taken the disposal of the Sessions Case is, normally, per Section 265-F of the Code. Only exception, provided thereto is with reference to Section 265-K Cr.P.C.
9. Though, the exceptional course, provided Under Section 265-K Cr.PC, has not been limited by legislature by using the term ‘at any stage’ but it has been made subject to satisfaction of the Court to the conclusion that there is no probability of the accused being convicted of any offence. This condition cannot legally include absence of complainant or witnesses because non-appearance of the complainant / witnesses would not necessarily lead to a conclusion that there is no probability of the accused being convicted of any offence .
10. The above discussion brings me to state that the Code provides no mechanism to meet a situation where there is no chance of appearance of the prosecution witnesses in a Sessions Case; although the Magisterial Court can do it by resorting to provision Under Section 249 of the Code. It may be kept in view that stopping of proceedings within meaning of Section 249 of the Code is meant to keep an opportunity open to the complainant / prosecution to prove the case by producing the evidence at a later stage which, for time being, the prosecution is unable to produce.
The deliberate existence of the Section 249 of the Code to meet such like situation in respect of the trials being dealt with by the Magistrate shows conscious awareness of agony which the accused persons face in such like situation where they have to continue attending the trial without any hope of his / her acquittal or conviction, so provided by the Code itself. The legislature cannot be believed to be discriminatory in treating the subject because in law ‘trial’ , ‘accused’ and ‘allegation’ have no different meaning whenever there arises any question for interpretation of these words before a Magisterial Court or a Sessions Court.
In view of above, I am clear in my view that non-availability of a particular provision to meet above situation should not result in keeping the accused without a hope of legal disposal of the charge against him / her, particularly when agony which an accused suffers while facing a charge is also a kind of punishment though not recognized by the Section 53 of the Pakistan Penal Code. Thus answer to above proposition is in negative.
11. Let me add here before responding any further that ‘justice’ at no cost and at no stage be allowed to fall prey to the procedural technicalities. They shall be ignored if they tend to create hurdles in the way of justice. For the law can survive as a living force only, when it dynamically assimilates and adapts to the changes around to further the cause of justice. This is how the law grows and this is how the jurisprudence advances.
Albeit, the procedure, provided for a trial before the Court (s) of Sessions, does not recognize ‘keeping a sessions case in abeyance’ however, I am conscious that guideline for doing something of the same nature which is in the discretion of the Court can be borrowed if the status elsewhere provide for doing things of same nature.
The provision of Section 249 of the Code permits the Magisterial Court (s) to stop the proceedings and discharge the accused without pronouncement of the judgment of acquittal or conviction. Such power (s) are similar to that of ‘keeping case in abeyance’ . The stopping of the proceedings, in no way, causes any prejudice to the term ‘fair-trial’ or ‘justice’ because such order not only protects the rights of the complainant / prosecution but that of the accused and in no way causes any harm or prejudice to either sides. Though the mechanism, provided under section 249 Cr.P.C is not provided in Chapter-XXI of the Code but the situation, where complainant and his witnesses do not appear or choose to avoid the process of law, may arise in a Sessions Case. The law, being a dynamic and living organ, has to cope up with every new situation within limitation (s) of law and discretion and the technicalities cannot stand in the way of Justice.
12. Thus, where in a Sessions Case the complainant and his witnesses / prosecution do not appear in the witness box despite coercive measures by the courts for procuring their attendance the accused cannot be allowed to suffer indefinitely for a deliberate and intentional act of complainant / prosecution particularly when it is amounting to a kind of punishment. The Court can pass an order, even if not recognized by the Code, if the same does not prejudice the rights of the parties nor harms the legal meaning of ‘fair-trial and justice’. This confirms the legal principle that a criminal charge shall require its legal disposal by the competent court in either ways i.e in ‘conviction’ or ‘acquittal’, because an accused is always presumed to be innocent hence mere an allegation, unless proved, should not be taken to have caused any effect upon the accused. Thus, even where proceedings are stopped it, in legal terms, causes no prejudice to an accused.
13. Let’s to examine whether in such like situation, closing of the prosecution side would be in spirit of law or otherwise. Since the Code does not restrict the complainant / prosecution to complete its side then how the court can do. Further, closing of side in such like situation would mean depriving the complainant / prosecution from his / its right to prove a charge, if at later stage the complainant / prosecution justifies circumstances preventing non-appearance in earlier stage. The Law can permit a deviation from normal provided course / procedure if it causes no prejudices rather serves the purpose of justice, but it (Law) shall not permit an act which may result in one coming forward with a plea of prejudice to his / its right to have fair trial.
14. In view of above discussion, I can safely answer the proposition that keeping a sessions case in abeyance (stopping proceeding thereof without pronouncement of judgment of acquittal or conviction) cannot be termed as illegal. However, before doing so, the Court shall adopt process, including coercive measures by issuing warrants even, to procure attendance of the complainant or the witnesses as provided u/s 87 and 88 Cr.P.C. as explained in Criminal Circulars and if at the end it is satisfied that there is no probabilities of procuring attendance of the complainant / witnesses in near future then the Court may order for keeping the case in abeyance and small discharge the accused. Albeit the case will, legally, be deemed to be pending but it should not continue harming or prejudicing the discharged / released accused because such order is meant to save the rights of the prosecution / complainant i.e a fair opportunity of hearing against the accused (legally presumed to be an innocent person) , therefore, he (accused) would be required to furnish his P.R. bond and bonds of surety, for his appearance if summoned by the trial Court at later stage. Reference can be made to the case of Sardaran Bibi v. State (PLD 1990 Karachi 233} wherein it was held:
4. The word ‘release the accused’ used in this section are significant. As defined in Aiyer’s Manual of Law Terms and Phrases, 7th Edition, the word ‘release’ means a discharge, a surrender, an extinction. It is a term denoting a variety of meanings. It cannot, therefore, be given a restricted meaning so as to denote only release from custody. This question was also examined by Munawar Ali Khan. J (as he then was) in S.Masood-ul-Hassan naqvi v. The State reported as 1986 PCr.LJ 1272 who held as follows:-
“Similarly the stoppage of proceedings under section 249 Cr.PC has the effect of discharging the accused until such time when on availability of the requisite evidence the case could be revived against him. I am, therefore, not inclined to endorse the view taken by the learned Sessions Judge. The stoppage of the proceedings amounts to termination of the case for the time being. Since the accused is not required to attend the Court as he stands released from such liability, the liability which extends to accused’s regular attendance in the Court also comes to an end . By no stretch of imagination the surety can be held to continue as surety for the accused for an indefinite period which, as pointed out above, may never be ended. In such a case it would be absurd to withhold the return of documents deposited by the surety’.
15. In view of above, order of the ‘keeping a case in abeyance’ shall be required to be passed while keeping in view the guidelines, provided for passing an order of stopping proceedings U/s 249 Cr.PC. Therefore, I hold the impugned order for keeping the case in abeyance is in line and within jurisdiction of the trial Court but germane to add here that such order would neither require to engage the surety of the accused / applicants for an indefinite period. The pendency of the case shall, otherwise, be deemed to be a termination to the case proceedings, hence keeping the file in ‘abeyance’ shall not prejudice the rights of the applicants / accused (police officials) in affairs of their service matters.
16. Accordingly, this revision petition is disposed of in view of above terms.
17. Additional Registrar of this Court shall circulate this dictum to all learned Additional and Sessions Judges of Province of Sindh.
JUDGE
Tufail