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Criminal Miscellaneous No. 144/Q of 1983, decided on 24th March, 1985.

‑‑‑Ss. 561‑A & 249‑A‑‑Acquittal under S. 249‑A‑‑Accused adopting delaying tactics during trial‑‑Not appearing before trial Court on number of dates despite coercive measures‑‑Petitioner having no notice of application under S. 249‑A, Cr.P.C.‑‑Record not showing that notice was served on prosecutor or that he made his submissions‑‑Magistrate acted in haste while deciding application under S. 249‑A, Cr.P.C. without affording any opportunity to prosecution‑‑Order of Magistrate acquitting accused, held, offended against principles of natural justice and could not be allowed to stand‑‑Petition accepted.

Syed Muhammad Ali Zaidi for Petitioner:

Nemo for Respondents Nos. 1, 2, 3 and 5.

Muhammad Zaman Qureshi for Respondent No.4.

The facts giving rise to this petition are as under:‑

A case under sections 419, 420 and 467, P.P.C. and section 82 of the Registration Act was registered against the respondents and another namely, Ch. Wali Muhammad Advocate on the report of Syed Mozahir Hussain petitioner. The order‑sheet of the trial Court shows that the challan was submitted in Court on 15‑4‑1976. Thereafter the case was adjourned to 4‑5‑1976, 25‑5‑1976, 14‑6‑1976, 6‑7‑1976, 21‑7‑1976, 16‑8‑1976, 10‑9‑1976, 25‑9‑1976, 19‑10‑1976, 3‑11‑1976, 26‑11‑1976, 4‑12‑1976 and 18‑1‑1977. On all these dates the accused did not appear despite coercive measures. During the pendency of the case Karam Ali respondent No.4 filed a petition for quashment (Criminal Miscellaneous No. 785‑Q of 1976) which was disposed of by this Court vide order dated 28‑5‑1980. In the said order it was observed that the questions of fact raised in the petition could well be urged before the trial Court and if the evidence recorded during the criminal proceedings disclosed only a civil liability, the petitioners (respondent No.4 herein) will be at liberty to make an application for quashment of the proceedings. Thereafter the trial Court summoned the accused for 27^thJuly, 1980 but no body appeared on that date or the subsequent dates i.e. 17‑8‑1980, 14‑9‑1980 and 6‑10‑1980. On 6th October, 1980 the case was adjourned to 2‑11‑1980. The order‑sheet shows that instead of 2‑11‑1980 the case was taken up on 1‑11‑1980, when Karam Ali respondent No.4 was present. The case was then adjourned to 2‑12‑1980 when Anis Fatima and Anis‑ul‑Hasan respondents were not present. Thereafter the case came up for hearing on 3‑1‑1981, 2‑3‑1981 and 4‑3‑1981. Anis‑ul‑Hasen and Anis Fatima were not present on any of these dates. On 4‑3‑1981 the learned Magistrate acquitted the accused under section 249‑A, Cr.P.C.

2. Respondents No. 1, 2, 3 and 5 have been served but they have not appeared. Learned counsel for the petitioner and respondent No. 4 have been heard. From the facts detailed above, it is evident that the respondents had been adopting delaying tactics. They did not appear on a large number of dates of hearing despite coercive measures. The record further shows that the petitioner herein had no notice of the; application under section 249‑A, Cr.P.C. Although the order states that notice of the application was given to the P.S.I. but it does not indicate that he was served and had actually made the submissions during the hearing of the application under section 249‑A, Cr.P.C. The application under section 249‑A, Cr.P.C. was made on 3‑3‑1980 and decided on the very next day. The Magistrate, thus, acted in hot haste and disposed of the application without affording any reasonable opportunity to the prosecution. The order offends against the principle of natural justice and cannot be allowed to stand. The order dated 4‑3‑1981 of the Magistrate and that of the Additional Sessions Judge dated 7‑11‑1982 are set aside. The file be sent back to the trial Court concerned. The learned Magistrate is directed to dispose of the case in accordance with law as early as possible.

S. A.

Order accordingly.

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