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Criminal Revision Application No. 53 of 1980, decided on 25th November, 1982.

‑‑ S. 249‑A ‑ Quashment of proceedings, legality of--‑Delay in proceedings of case not at all attributable to negligence of prosecu tion but delay caused due to conduct of absconding co‑accused ‑No serious efforts made to procure attendance of prosecution witness aced trial Court Goon failed to pursue coercive processes issued against accused to secure their attendance‑--Impugned order passed under S. 249‑A. Cr. P. C., held, suffered from material irregularities and in, violation of principles laid in S. 249‑A‑ Order of trial Court set aside and case remanded for re‑trial, in circumstances.

M. A. Kazi for Applicant.

A. A. Muhammad Ali for Respondents,

Date of hearing : 25th November, 1982.

The applicant above‑named, being aggrieved by order dated 26‑12‑1979 of the learned A. C. M. Garden/Nabi Bux Karachi, passed in Case No. 733/79, by which respondents Nos. 2 and 3's application under section 249‑A, Cr. P. C. was allowed and the said respondents were acquitted, has preferred the above petition, on the facts and grounds mentioned in the above petition.

2. The learned Advocate for the applicant in support of the above petition submitted, that respondent's said application has been wrongly allowed under section 249‑A, Cr. P. C., on the ground of allege delay on the part of prosecution to produce witnesses. The learned counsel further submitted, that delay in proceeding with the case is not due to prosecution, but on account of absconsion of 3 accused, against whom proceedings under section 512, Cr. P. C. were completed on 22‑5‑79, and as such the case could not proceed from 30‑12‑1976. The learned counsel further submitted, that charge against respondents was framed by the learned trial Court for the first time on 20‑6‑1979 and summons for prosecution witnesses were issued for the first time for 4‑7‑1979. That soon after this, on 1‑8‑1979, respondents filed application under section 249‑A, Cr. P. C. on ground of delay etc. and said application was fixed for hearing on 15‑8‑1979. The learned counsel submitted, that on 15‑8‑1979, complainant (applicant) appeared in Court in response to summons to give his statement, but he could not be examined for no fault of his up to 11‑12‑1979, as either P. S. I. was not present or on grounds for which applicant was not in any way responsible. On 26‑12‑79, three P. Ws. were served and one of them was present in Court, but Presiding Officer was not able to proceed with the case, but allowed the respondents' application as two P. Ws. were unserved. Keeping in view these facts in Court diary, the learned counsel submitted, that impugned order cannot legally be sustained, as it suffers from material irregularities as well as illegality.

3. The learned Advocate for the respondents Nos. 2 and 3 on the other hand submitted, that case was pending from 30‑12‑1976 and only one P. W. was examined by prosecution up to 26‑12‑1974, when impugned order was passed and as such the order is in accordance with the law and was passed in "order to end the harassment of respondents Nos. 2 and 3.

4. I have gone through the Diary Sheet of the learned trial Court as well as impugned order and have taken into consideration, the above submissions made by the learned counsel.

5. I find delay in proceeding of the case from 30‑12‑1976 up to 22‑5‑1979 was not at all due to prosecution, as on this date cases of the three absconding co‑accused persons were separated. I further find that charge against present respondents was framed for the first time on 20‑6‑1979 and, summons to prosecution witnesses were issued for the first time on 4‑7‑1979. whereas respondents had moved application under section 249‑A, Cr. P. C., on 1‑8‑1979. I further find, that learned trial Court did not pursue the coercive processes for attendance of P. Ws. as required by law, though once only non‑bailable warrants were issued against P. Ws. on 1‑8‑1979, but thereafter again summons were issued and no real attempt was made even to serve official P. W. A. S. 1. Asghar. In view of my above observations and conclusions, I am of the opinion, that impugned order cannot legally be sustained on the grounds mentioned in the said order, as it suffers from material irregularity and is in complete violation of the principles laid down under section 249‑A, Cr. P. C. and was not at all justified even on facts on record= which were completely misread by the learned trial Court.

6. Therefore I allow the above petition and set aside the impugned order of acquittal dated 26‑12‑1979 of the learned trial Court and remand back the case against respondents to the learned trial Court and direct the learned trial Court to procure attendance of P. Ws., if necessary by coercive processes like issuing non‑bailable warrants etc. as provided by law against them and to dispose of the case in question against the above respondents within three months from the receipt of the copy of this order, on merits.

Revision allowed.

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