Muhammad Amin vs Momin Khan

P L D 2014 Peshawar 49

Before Rooh-ul-Amin Khan, J

MUHAMMAD AMIN---Petitioner

Versus

MOMIN KHAN and 2 others---Respondents

Criminal Revision Petition No.16-B of 2013, decided on 23rd May, 2013.

Criminal Procedure Code (V of 1898)---

----S. 344---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Qatl-e-amd, attempt to commit qatl-e-amd, rioting, common object---Power of Trial Court to postpone or adjourn proceedings---Prosecution, in the present case, had examined seven witnesses, while the complainant, an injured witness, and a witness to the recovery memo, had been abandoned, because of their absconsion, and the case was adjouned for an indefinite period---Validity--- Section 344, Cr.P.C., had nowhere provided that case be kept pending and waited for evidence of a fugitive from law, and that too for an indefinite period---Policy of criminal law was to bring accused to justice as speedily as possible, so that, if they were found guilty, they could be punished, and if, they were found innocent, they could be acquitted and discharged---Significant clause of S.344, Cr.P.C., had curtailed the powers of the Trial Court to keep the case pending without passing order of adjournment, or to adjourn the case sine die for an indefinite period--- Trial Court could adjourn the trial for good reason, but up to reasonable time---No bar existed against the adjournment from time to time, but same could not be granted at a stretch--- Indefinite postponement of a criminal case, was undesirable and was also against the spirit and mechanism provided by S.344, Cr.P.C.---If such practice was encouraged, no session case would see the ray of decision---Any order of the impugned kind, was impossible to be upheld on the ground that witnesses, who had direct relevance with the prosecution case, were not coming forward, because they were absconding from justice in a murder case---Impugned order passed by the Trial Court was set aside---Trial Court was directed to proceed with the case, in strict compliance of S.344, Cr.P.C., in circumstances.

Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 rel.

Imran Ali Shah for Petitioner.

Ahmad Farooq Khattak, A.A.G. for Respondents.

Date of hearing: 23rd May, 2013.

JUDGMENT

ROOH-UL-AMIN, KHAN, J.---Petitioner, Muhammad Aminullah through instant criminal revision petition has challenged the order dated 15-12-2012, passed by the learned Additional Sessions Judge-II, Lakki Marwat, whereby proceeding of Sessions case 72 of 2011, titled "State v. Muhammad Amin and others", was held in abeyance and adjourned sine die.

2.Brief facts of the case leading to filing of instant petition are that, petitioner along with some others were charged in case F.I.R No.207, dated 26-9-2008 registered under sections 302/324/148/149 P.P.C., at Police Station Tajori, Lakki Marwat. During the trial prosecution in support of their case produced and examined eight P.Ws. while remaining P.Ws. i.e. complainant Momin Khan, injured Abdul Manan and recovery witness Ajab Khan could not appear before the, court for recording their statements because of their absconsion in a murder case vide F.I.R. No. 31 dated 28-2-2012, registered at Police Station Tajori. In this regard, statements of Inamullah DFC No.83 (SW3) and Jehanzeb DFC No. 3788 (SW-4) were recorded, in light whereof, the above-named three P.Ws. have been abandoned for the time being, by Deputy Public Prosecutor. The learned trial court vide order dated 15-12-2012, by exercising

powers under section 344(1), Cr.P.C., held in abeyance the proceedings and adjourned the case sine die. The under trial accused/petitioner, feeling aggrieved from the said order, has preferred instant criminal revision petition.

3.Perusal of record divulges that the prosecution has examined seven witnesses, while out of the remaining witnesses, Momin khan complainant, Abdul Manan injured, and Ajab Khan, a witness to the recovery memo, have been abandoned, because of their absconsion in case F.I.R No. 31 dated 28-2-2012, registered Police Station Tajori, for murder of one of the accused Gulo Jan.

4.Previously, the committing Magistrate used to record evidence in a case triable by the Sessions Judge and could send the case to the Sessions Judge, if prima facie, the case had been proved. After amendment in section 190 Cr.P.C., change has been brought about that the Magistrate taking cognizance under section 190(3) Cr.P.C. of the offence, exclusively triable by Sessions, shall without recording any evidence send the case to the Court of Session for trial. Under the provision of the section ibid the Sessions Judge, take cognizance of those cases, which are sent to him by the Magistrate. Thus, after receipt of case, the provision of section 344 Cr.P.C, are equally applicable to the proceedings before Sessions, except the restriction of adjournment for 15 days. For proper appreciation and correct understanding section 344 Cr.P.C. is reproduced as below:--

"344. Power to postpone or adjourn proceedings.---(1) If, from the absence of a witness or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:

Remand. Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.

(2)Every order made under this section by a Court other than a High Court shall be in writing signed by the Presiding Judge or Magistrate."

From the bare reading of the above quoted section, it is manifest that the Court may if it think fit by order in writing "stating the reason therefor from time to time," postpone or adjourn the proceedings "for a definite reasonable time". The words "for such time as it considers reasonable" are significant in the section ibid, which keep the jurisdiction of Sessions Judge, limited to the extent of adjournment for a specific period. The significant clause of section 344, Cr.P.C., curtail the powers of Sessions Judge to keep the case pending without passing order of adjournment or to adjourn the case sine die for an indefinite period. The Sessions Judge, may adjourn the trial for good reason, but up to reasonable time. There is no bar against the adjournment from time to time, but the same may not be granted at a stretch. In the present case, the learned sessions Judge has passed the impugned order, whereby proceeding has been adjourned for an indefinite period, which is against the spirit and mechanism provided by section 344, Cr.P.C. The indefinite postponement of a criminal case is undesirable. In the instant case the learned trial Court has advanced the reason for sine die adjournment of the case that the complainant Momin Khan along with injured witness Abdul Manan and alleged recovery witness Ajab Khan had gone into hiding and are fugitive from law in a murder case. The evidence of the above named witnesses has got direct relevance and bearing upon the present case, therefore, it has become necessary to adjourn the case sine die. The above findings of the learned trial Court are against the spirit of section 344 of Criminal Procedure Code. The section ibid never provides that a case be kept pending and awaited for evidence of a fugitive from law, and that too, for an indefinite period. The word "absence of a witness" does not mean absence of the person trying to elude justice or absconder. It is settled law that fugitive from law loses some of his normal rights granted by procedural as well as substantive law. Reliance may be placed on case, titled, "Muhammad Sadiq v. Sadiq and others" (PLD 1985 Supreme Court 182).The absence of such a witness is not a reasonable cause and not necessary or advisable for adjournment of the case for an indefinite time. If such practice is encouraged, I am afraid that no Session case would see the ray of decision. In frivolous and concocted cases a

witness would deliberately absent himself and the Court will sit idle in his waiting. Sine die is a Latin word means "without assigning a date for future proceedings", thus adjournment sine die means the postponement of proceeding for an indefinite period without assigning a date, for future hearing. Section 344, which deals with powers of the Court to postpone or adjourn proceeding in criminal case, no where provide for an indefinite adjournment of a case. The policy of criminal law is to bring accused persons to justice as speedily as possible, so that, if they are found guilty, they may be punished, and if, they are found innocent, they may be acquitted and discharged. I am clear in my mind that any order of the impugned kind is impossible to be upheld on the ground that witnesses, who have direct relevancy with the prosecution case/instant case, are not coming forward, because they are absconding from justice in a murder case.

5.In wake of the above, on accepting instant revision petition, the impugned order dated 15-12-2012, passed by the learned Sessions Judge, is set aside. However, the accused/petitioner shall remain on bail on the strength of existing bail bonds. The learned trial court is directed to proceed with the case in accordance with the above mentioned observations and for strict compliance of section 344, Cr.P.C.

HBT/429/P Revision Petition accepted.