2000 Y L R 348

[Lahore]

Before Sheikh Abdur Razzaq, J

Malik AZHAR HUSSAIN ‑‑‑Petitioner

 versus

 THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6‑Q of 1999, decided on 14th January, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.561‑A‑‑‑Penal Code (ALV of 1860), Ss. 420 & 506‑‑‑Quashing of proceedings‑‑­After usual investigation, case went up for trial, charge was framed but during nine years only two prosecution witnesses were examined‑‑‑Case was adjourned for one hundred and thirty‑one times for recording prosecution witnesses‑‑‑On about eighteen times bailable warrants had been issued for summoning prosecution witnesses, coercive measures had been adopted to secure attendance of witnesses, but prosecution had failed to produce them despite the case had been lingering on for about nine years‑‑‑Not only complainant had failed to examine himself to support his stand, but one of the witnesses who was examined so far had been declared hostile and second one had not involved accused in the case‑‑‑Accused despite absence of any evidence against them were being subjected to face rigour of trial which amounted to harassment of accused and an abuse of process of Court, which could not be allowed to continue‑‑­Proceedings against accused, were quashed in circumstances.

 

Gul Jamal Khan and others v. Shah Jahan Khan 1971 PCr.LJ 943, State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto 1993 SCMR 523; Lal v. Ghullan and others 1988 PCr. LJ 990 and Abdul Sattar and others v. The State 1992 PCr.LJ 2054 ref.

 

Sh. Muhammad Suleman for Petitioner.

 

Muhammad Din Bhatti for the Complainant.

 

Raja M. Ayub Kayani for the State.

 

ORDER

 

Instant petition has been moved for the quashment of proceedings pertaining to F.I.R. No.265, dated 19‑6‑1991 under sections 420 and 506, P.P.C. registered at Police Station Civil Lines, Rawalpindi.

 

  1. Briefly stated the complainant case is that both the present petitioner and his other companion obtained a sum of Rs. 1,30,000 from him vide receipts dated 16‑4‑1990 and 9‑5‑1990 for running business. Both of them issued two cheques, dated 5‑1‑1991 and 10‑3‑1991 but those were dishonoured, hence he was constrained to lodge this case against them. After usual investigation, the case was sent up for trial in the Court on 22‑9‑1991 and charge was framed on 14‑11‑1991. During the pendency of the case, statements of P. W.1 Daraz Siddique and P. W.2 Abdul Razzaq, S.‑I. were recorded on 25‑9‑1993 and 28‑9‑1993 respectively. As the matter did not proceed and prosecution failed to produce evidence in the trial Court, so the accused/petitioner moved applications under section 249‑A, Cr.P.C. on 16‑9‑1992 and 29‑3‑1997 which were dismissed by the trial Court vide orders, dated 27‑2‑1993 and 20‑4‑1998 respectively. ‑As the matter has been lingering on for the last about more than 8 years, so the accused/petitioner moved the instant petition for the quashment of proceedings pending against him.

 

  1. Arguments have been heard and record perused.

 

  1. Contention of learned counsel for the petitioner is that according to the contents of the complaint, both the present petitioner and his companion are alleged to have obtained a sum of Rs.1,30,000 on 16‑4‑1990 and 9‑5‑1990 for running business but the instant F.I.R. was lodged on 19‑6‑1991, that as a result of investigation, challan was submitted on 22‑9‑1991 and from 22‑9‑1991 till today, only two witnesses have been examined, that during this period, as many as 131 dates of hearing have been fixed for recording prosecution evidence, that on 18 times bailable warrants have been issued for summoning the witnesses, that coercive measures have been adopted to secure the attendance of witnesses but prosecution has failed to produce them, that the case has been lingering on for about 9 years and as the prosecution has failed to produce evidence connecting the petitioner with the commission of this offence, so the trial Court was not justified in dismissing applications under section 249‑A, Cr.P.C. that all these facts clearly prove that continuation of these proceedings amounts to abuse of the process of Court as such proceedings be quashed and placed reliance on Gul Jamal Khan and others v. Shah Jahan Khan (1971 PCr.LJ 943), State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto (1993 SCMR 523), Lal v. Ghullam and others (1988 PCr.LJ 990) and Abdul Sattar and others v. The State (1992 PCr.LJ 2054).

 

  1. Conversely, the petition has been opposed by learned counsel for the complainant. His contention is that it was the duty of the prosecution to make the witnesses available and as it has failed to produce them, so the complainant cannot be held responsible for that, that both the present petitioner and his companion had taken a sum of Rs.1,30,000 from him and had issued two cheques which were dishonoured and as such he was constrained to file the instant case against them.

 

  1. Admittedly, as per contents of the F.I.R., a sum of Rs. 1,30,000 was obtained by the present petitioner and his companion on 16‑4‑1990 and 9‑5‑1990. The said amount having not been paid to the complainant, he was constrained to file the instant case against them. As a result of investigation, challan was submitted in Court on 22‑9‑1991; charge was framed against the accused on 14‑11‑1991. During the pendency of these proceedings, prosecution produced only two witnesses, out of whom P.W.1 was examined on 25‑9‑1993 and P.W.2 was examined on 29‑9‑1993. Admittedly, from 22‑9‑1991 till today, only two witnesses have been examined and the trial Court has been granting adjournments one after the other to the prosecution to produce evidence. A perusal of the record of the trial Court shows that more than 131 adjournments have been granted to the prosecution to produce evidence, but it has failed to prove its case. The record further reveals that even the complainant failed to examine himself to support his stand and further failed to produce private witnesses though directed by the Court. The record further reveals that P.W.1 has been declared hostile and P.W.2 has not involved the petitioner or his companion. Thus, no evidence is available against the accused and yet they are being subjected to face the rigours of the trial which clearly amounts to harassment of the accused/petitioner and an abuse of the process of the Court which cannot be allowed to continue.

 

  1. Consequently, this petition is accepted and proceedings in the trial Court as per F.I.R. No. 265, dated 19‑6‑1991 of Police Station Civil Lines, Rawalpindi under sections 420 and 506, P.P.C. are hereby quashed.

 

H.B.T./A‑17/L

 

Petition accepted.