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Criminal Miscellaneous Application No. 755 of 1981, decided on 18th August, 1982.

-- S. 561-A-Penal Code (XLV of 1860), S. 447-Quashing of proceedings-Record showing that accused themselves responsible for us causing undue delay in disposal of case against them--Accused, held, z c could not be allowed to take advantage of their own fault--Con tention of accused person that trial Magistrate once acquitted them orally but subsequently record changed and warrants issued against them, also not proving true-Prayer for quashing of proceedings not granted.

S. Maqsoom Hassan Rizvi for Applicants.

Zafar Alam Khan for Respondent No. 2.

A. H. Farooqui for the State.

Date of hearing : 12th August, 1982.

This is an application under section 561-A, Cr. P. C. for quashment of the proceedings pending before Assistant Commissioner and S. D. M. Malir under section 447, P. P. C. Respondent No. 2. had filed a complaint against the applicants on 15th May, 1973 for offences under sections 382, 452/34, P. P. C. before the learned Magistrate. It was alleged in the com plaint that on 16th April, 1973 the applicants had forcibly entered Survey Nos. 70 and 71 in Deh Konkar, Malir, District Karachi and forcibly took away immovable property of respondent No. 2 from there. The above Survey numbers were transferred to respondent No. 2 by the Settlement Authorities. Respondent No. 2 is Manager of S. M. Shafi Ahmed Zaidi and is looking after this land.

2. After holding preliminary inquiry, the learned Magistrate issued process against the applicants for offence under section 452/34, P. P. C. by his order dated 12th June, 1973. In his complaint, respondent No. 2 had cited three witnesses namely Muhammad Ramzan, Muhammad Akhtar and Muhammad Siddique, who had seen this incident.

3. The case proceeded before the learned Magistrate and some of the above witnesses were examined, but in the meanwhile Cr. P. C. was amended and different procedure was provided for trial of criminal cases. The learned Magistrate started de novo trial. This time he framed charge under section 447, P. P. C. and called upon the complainant produce his witnesses.

4. Earlier the applicants had filed an application before the learned trial Magistrate for acquittal of the accused under section 253, Cr. P. C. This application was rejected by the trial Magistrate. Subsequently, when the Cr. P. C. was amended and section 249-A was incorporated therein, the applicants again moved an application for acquittal of the accused under the above section. The learned Magistrate dismissed this appli cation also. The applicants then filed revision against the said order before Sessions Judge, who dismissed the revision application. The applicants thereafter filed the present application under section 561-A, Cr. P. C. for quashment of the proceedings.

5. The main ground urged by the learned counsel for the appli cants is that although the complaint was filed in the year 1973, but it has not yet been proceeded with and the trial has protracted inor dinately. So far as the delay is concerned, respondent No. 2 leas filed his counter-affidavit in which he has stated in detail the circumstances, which have led to the protraction of the trial. It is alleged that it was mainly due to the applicants themselves that the trial has taken so much time. They have been filling applications after applications in different Courts. Once the record was summoned by the Sessions Judge for disposal of the revision application. After dismissal of the revision, the applicants filed the present application in the year 1981 and the record was sent for by this Court, due to which the trial could not proceed. Perusal of the record would show that the applicants themselves are responsible for causing undue delay in the disposal of this case. They cannot be allowed to take advantage of their own fault. Hence the revision application cannot be allowed on this ground. It has next been urged that on 15th July, 1981 this case was fixed before the learned Magistrate, when by an oral order tie had acquitted the applicants of the offences, but subsequently they came to know that the record has been changed and warrants issued against the applicants. Learned counsel for the applicants has filed an affidavit to this effect. But in this affidavit he does not say that he was present on the day when the order of acquittal was orally announced. He came to know of this fact from the applicants themselves. None of the applicants has filed an affidavit to this effect. On the contrary there is counter-affidavit of respondent Manzoor Hussain, who has stated that no such oral order of acquittal as alleged by the applicants, was ever announced by the learned Magistrate.

I have no reason to disbelieve the respondent on this point. This revision application has no substance and is, therefore, dismissed as such. The record of the lower Court shall be immediately returned to the trial Court with the direction that he should proceed with the trial expeditiously and dispose of the case within three months.

M. Y. H. Petition dismissed.

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