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Criminal Miscellaneous Application No. 978 of 1986, decided on 26th October, 1986.
‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), S. 363/376‑‑Quashing of proceedings‑‑ Witnesses in case not served and not appearing on date of hearing‑‑Complainant expiring and whereabouts of prosecution witnesses also not known‑‑Accused facing trial for more than sixteen years without any progress in the case‑‑Examination‑in‑chief of complainant not concluded‑‑There existing no likelihood of any progress in case in near future‑‑Case clearly of abuse of process of Court‑ Proceedings against accused quashed in circumstances.
K.M. Nadeem for Applicants.
Makhdoom A. Wali for the State.
Date of hearing: 26th October, 1986.
On 7‑2‑1970 one Aijaz Ahmed lodged the report stating therein that his daughter Mst. Husan Bano alongwith his son Intizar Ahmed had gone to get tuition on 5‑2‑1970 and thereafter they did not return to their house. He expressed suspicions that his daughter and son might have been enticed away by Zakir and Wahid. Subsequently, Mst. Husan Bano and Intizar Ahmad were recovered by the complainant of his own from the house of his brother‑in‑law at Sahiwal after about two months. The girt was medically examined and she was found to be major and used to sexual intercourse. She was also found pregnant of 4 months at the time of her medical examination. After usual investigation the present applicants were sent up for trial under section 363/376, P.P.C. During the course of trial the complainant Aijaz Ahmed was examined. Even his examination‑in‑chief was not completed and thereafter he did not appear on any date of hearing. The process server was examined by the trial Court on 17‑7‑1979 wherein he has stated that he went on the given address and found that Mst. Husan Bano has proceeded to Holland with her husband. As regards the P.W. Intizar, he is also not traceable for the last 3‑4 years and P.W. Aijaz Ahmed (complainant) has since expired. Thereafter repeated attempts were made for service on prosecutrix and Intizar but the service could not be affected on these witnesses.
I have examined the diary of the Court which shows that the witnesses were not present on any date of hearing. They could not be served. The diary of 17‑7‑1979 clearly shows that the complainant had expired and whereabouts of Intizar Ahmed were not known. The applicants are facing trial for more than 16 years without any progress in the case. The examination‑in‑chief of the complainant was not even concluded and, therefore, the statement was not tested by the defence in cross‑examination. For practical purposes the statement of the complainant would have no effect as the statement was not completed. The other two material witnesses have not been examined and their attendance could not be procured in spite of repeated attempts.
The facts narrated above would clearly show that it is a case of the abuse of the process of the Court. There is no likelihood of any progress in the case in near future.
The learned counsel appearing on behalf of the State has also supported the contention of the learned counsel for the applicants.
The application is allowed and the proceedings pending in the Court of VIth Assistant Sessions Judge, Karachi under section 363/376,I P.P.C. are quashed.
M.Y.H. Proceedings quashed.
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