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Criminal Miscellaneous No. 196-Q of 1980, decided on 17th May, 1980.
-----S. 561-A--Quashing of proceedings-Delay in recording evi dence mainly due to absence of accused on various dates of hearing on one pretext or other-Quashment declined, in circumstances. (Delay).
-----S. 561-A read with S. 265-K---Quashing of proceedings ----Appreciation of evidence on quashment petition, held, none of function of High Court and if no case made out on merits nor any probability of conviction of accused, trial Court to be moved under S. 265-K, Cr. P. C.
Asif Saved Khosa for Petitioners.
Learned counsel has vehemently argued that the delay amounts to an abuse of the process of law, and there is no case made out against the petitioners from the evidence already produced. He has cited plenty of case law in support of his contention for quashment of the proceed ings on the ground of abuse of the process of law. Each case proceeds on its own facts.
2. I have perused the parawise comments. According to the learned trial Court
This delay in recording the evidence is mainly due to the absence of the accused on the dates of hearing. Out of these five accused Abdul Qadir Patwari and Muhammad lqbal accused have mostly remained absent which hampered the conclusion of the case. The trial of the case started actually on 15th April, 1976 and the accused persons absented themselves from the Court on one pretext or the other. It is important to note that during the period of about four years (from 1976 to 1980) the accused remained absent on as may as 17 dates of hearing and normally the case used to be adjourned for next date of hearing for a period of about one month.
In the circumstances stated above, I am afraid the petitioners cannot complain of inordinate delay and shoulder the prosecution with this responsibility.
The learned counsel for the petitioners has brilliantly argued that no case is made out on merits. I am afraid, appreciation of the evidence is the function of the learned trial Court and I would not like to go into it. If no case is made out on merits and there is no of conviction of the petitioners, they should move the learned trial Court under section 265-K, Cr. P. C.
3, I am not satisfied with the explanation offered by the learned trial Court for the delay. The effective Presiding Officer should have promptly issued notice to the accused for showing cause as, to why the bail be not cancelled, and if he was satisfied that the accused were playing dilatory tactics, he should have proceeded to cancel the bail, which he can do even now, if it is found expedient in the interest of justice. Similarly the attendance of the witnesses can be ensured by issuing com pulsive process under the Code of Criminal Procedure. I would, there fore, direct the learned trial Court to proceed with the case expedi tiously, and if possible day-to-day, so that it is finally concluded with in six months of the receipt of this order. Disposed of accordingly.
Order accordingly.
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