P L D 2018 Balochistan 39
Before Muhammad Hashim Khan Kakar, J
SADULLAH and another ---Petitioners
Versus
THE STATE---Respondent
Criminal Revision No.69 of 2015 and Criminal Miscellaneous Quashment No.392 of 2017,
decided on 4th December, 2017. (a) Interpretation of statutes ---
----Omission in statute ---Effect and remedy ---Duty of court ---Scope ---Omission in statute cannot
be supplied by construction---Court is not entitled to read words into an Act of legislature unless
a clear reason for it is to be found within the four corners of Act itself ---Duty of court is neither
to add to nor to take anything from a statute unless there are good grounds for thinking that
legislature intended something which it had failed to precisely express ---Where no such
inference is possible, words cannot be added in the provisions or alterations or restore cassus omissus in the statute without a suitable amendment---Courts cannot remedy either of such defects and has no power to fill any gaps disclosed in an Act --- If there is any omission in a
statute, it is for the legislature to fill it up and it is beyond the jurisdiction of court to do so.
(b) Criminal Procedure Code (V of 1898) ---
----Ss. 249, 265 -K, 344 & 439---Pe nal Code (XLV of 1860), S.302---Qatl -i-amd---Proceedings
held in abeyance ---Scope ---Trial Court, due to non- availability of material witnesses, directed to
keep trial dormant under S.249, Cr.P.C. till availability of requisite evidence justifying revival of case against accused persons ---Validity ---Trial Court could postpone or adjourn proceedings for
a definite time under S.344, Cr.P.C. by mentioning reasons thereof but simultaneously power of court was restricted to adjourn case sine die for an indefinite period of time ---Case could have
been adjourned or kept pending for a good reason that too up to a reasonable time ---High Court
observed that if such practice was allowed no trial would arrive to a logical conclusion---Keeping a case or stopping proceedin gs under S.249, Cr.P.C. and ordering cases to be kept
dormant by Sessions Court were not in line and within jurisdiction of Sessions Court ---High
Court set aside order passed by Sessions Court and remanded case for decision in accordance with law ---Applica tion under S. 265- K, Cr.P.C. was directed to be deemed to be pending and
decided on basis of available evidence---Revision was allowed accordingly.
(c) Criminal Procedure Code (V of 1898) ---
----S. 249---Stoppage of proceedings ---Nature---Stoppage of proc eedings under S. 249, Cr.P.C.
has effect of discharging accused until such time when on availability of requisite evidence case
could be revived against him ---Such stoppage amounts to termination of case for the time being.
Muhammad Wassay Tareen and Qar i Rehmatullah for Petitioners.
Abdul Karim Malghani and Saeed Ahmed Kakar for the State.
Date of hearing: 24th November, 2017.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Through this common order, I intend
to decide the fate of Criminal Revision Petition No.69 of 2015 and Criminal Miscellaneous
Quashment Petition No.392 of 2017, as common questions of law and facts are involved.
2. The facts in petition No.69 of 2015 are that the petitioner Saadullah son of Malang was
facing trial in Crime No.51 of 2013 of New Sariab Police Station, Quetta, under Section 302 read
with Section 34 of the Pakistan Penal Code 1860 (P.P.C.) before the Court of learned Additional Sessions Judge -IV, Quetta ("the trial Court"), for committing the alleged murder of one Khair
Muhamm ad. Due to non -availability of material witnesses, the case was ordered to be kept in
dormant till availability of requisite evidence, justifying the revival of the case against the petitioner vide order dated April 28, 2015 ("the impugned order").
3. Wher eas the facts of petition No.392 of 2017 are that petitioner Jan Gul son of Sikandar
alias Oti along with co -accused were facing trial in pursuance of Crime No.10 of 2013, lodged
with levies station Manzai, under Section 302 read with Sections 147, 148, 149 and 34 of the P.P.C. before the Court of learned Sessions Judge, Loralai ("the trial Court"), with the allegation of committing the murder of deceased Abdul Wahab. Since alleged eye -witnesses, namely,
Muhammad Khan and Muhammad Qalam were not traceable, as such, after rejecting the application under Section 265- K of the Criminal Procedure Code 1898 (Cr.P.C.), moved on
behalf of the petitioner, application under Section 249 of the Cr.P.C. was allowed by means of order dated August 3, 2017 ("the impugned order") and the case was kept in abeyance till further orders.
4. To enjoy the protection of law and to be treated in accordance with law are the
inalienable rights of every citizen and no person shall be deprived of his life or his liberty except according to procedures, established by law under Article 4 of the Constitution of Islamic
Republic of Pakistan 1973 ("the Constitution"). Similarly, Article 10- A of the Constitution
declares every citizen entitled to a fair trial and due process for determination of his civil rights and obligations or in any criminal charge against him. The mental agony, expenses and strain, which a person proceeded against in criminal law, has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself, have persuaded the superior Courts of the country in holding the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article 10 -A of the Constitution.
5. I have heard M/s. Muhammad Wassay Tareen and Qari Rehmatullah, learned counsel for
the petitioners and M/s. Abdul Karim Malghani and Saeed Ahmed Kakar, Advocates, representing the State and have also gone through the available record with their valuable assistance.
6. The moot ques tion, which requires to be answered, is whether a Court of Session can stop
proceedings under section 249 of the Cr.P.C. and order the case to be kept in dormant/abeyance
for want of non- availability of complainant and eye -witnesses or such Court can adjourn the case
sine die for indefinite period, while exercising powers under the provisions of Sections 249 and 344 of the Cr.P.C.? For proper appreciation and correct understanding, Section 249 of the Cr.P.C
is reproduced below:
"249. Power to stop proceedin gs when no complainant . In any case instituted
otherwise than upon complaint a Magistrate of the first -class, or with the previous
sanction of the Sessions Judge, may for reasons to be recorded by him, stop the
proceedings at any stage without pronouncing any judgement either of acquittal or conviction, and may thereupon release the accused."
7. A bare perusal of the above provision of law clearly manifests that it relates to the trials
conducted by the Magistrates under Chapter XX of the Cr.P.C. i.e. Magis terial trial, while the
trials of the cases before the High Court and the Courts of Session are to be dealt with in accordance with the provisions of Chapter XXII -A of the Cr.P.C. The provisions of this Chapter
do not recognize the terms "keeping in abeyan ce", "to be kept in dormant" or "adjournment of
the case sine die". No provision under this Chapter exists, empowering the Courts of Session to
keep the case in dormant or stopping of the proceedings for indefinite period due to non-
availability of the pro secution witnesses.
8. Learned State Counsel, while defending the impugned orders passed by the trial Courts,
stated that though the provisions of Chapter XXII -A of the Cr.P.C. do not recognize the above
quoted terms and the Code of Criminal Procedure too does not provide a mechanism to cope -up
with a situation, where the complainant and his witnesses do not appear before the Sessions Court in spite of coercive measures adopted to procure their attendance, yet, while borrowing such powers from Chapter XX of the Cr.P.C., the Sessi ons Judge can stop the proceedings by
exercising powers under Section 249 of the Cr.P.C.
9. I am afraid the contention of learned State counsel is without any substance for the reason
that the Court is to administer the laws as are operating in the country and if such laws fail to
achieve the desired results -then it is duty of the legislature to amend it suitably to make it
effective. Court is not permitted to deviate from the principles and the procedures laid in the law.
It is well settled principle of la w that omissions in a Statute cannot, as a general rule, be supplied
by construction. A Court is not entitled to read words into an Act of the legislature unless a clear reason for it is to be found within the four corners of the Act itself. Its duty is ne ither to add to,
nor to take from, a Statute anything, unless there are good grounds for thinking that the legislature intended something, which it has failed to precisely express. Where no such inference is possible, words cannot be added in the provisions or alterations or restore cassus omissus in the Statute, without a suitable amendment. The Courts cannot remedy either of these defects. A Court has no power to fill any gaps disclosed in an Act. To do so, would amount usurping the function of the legisl ation. If there is an omission in a Statute, it is for the legislature to fill it up
and it is beyond the jurisdiction of the Court to do so.
10. I am in agreement with learned State Counsel that in case of accidental omission in a
Statute, the Court can s upply the omission, but according to my humble opinion, it can only be
done when the intention of the legislature can be clearly called from the words of the Statute and
in such case, omission can be supplied by Court to serve the purpose of law.
11. So fa r as the provision of Section 344 of the Cr.P.C. is concerned, it has been noticed by
this Court in a number of cases, where the Sessions Courts, while exercising powers under the
said provision of law, adjourned the cases sine die for an indefinite period. For facilitation, Section 344 of the Cr.P.C. is reproduced herein below:
"344. Powered 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 commencemen t 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 Co urt shall be in
writing signed by the Presiding Judge or Magistrate."
12. The above cited provision of law clearly shows that the trial Court may postpone or
adjourn proceedings for a definite time by mentioning the reasons thereof, but simultaneously, it restricts the powers of a Court to adjourn the case sine die for an indefinite period. The case could have been adjourned or kept pending for a good reason, that too, up to a reasonable time. The reasons behind the same are that if such practice is allowed , no Sessions' case would arrive
to a logical conclusion.
13. Perusal of record reveals that the eye- witnesses were summoned on several occasions and
they were also summoned through the concerned investigating officers/Station House Officers. The summons, sent to the said witnesses, were received back unserved, with the reports that the said witnesses were not traceable and the investigating officers submitted their reports to that effect. After adopting all the coercive measures for procuring the attendance of the said witnesses and coming to the conclusions that the said witnesses were not traceable, the impugned orders were passed, whereby the proceedings were stopped by keeping the cases in abeyance, and the accused/petitioners were released on bail unde r Section 249 of the Cr.P.C. with a
direction that they are bound to appear in the Courts, whenever summoned. It is by now settled that stoppage of proceedings under Section 249 of the Cr.P.C. has the effect of discharging the accused until such time when on availability of the requisite evidence, the case could be revived against him. It amounts to termination of the case for the time being. Such practice by the Sessions Judges is not only against the theme of law on the subject, principle of speedy trial, but
also is in violation of the fundamental rights, guaranteed by the Constitution. Article 4 of the Constitution confers a fundamental right on every person not to be deprived of his life and liberty, except according to procedures established by law. There is no doubt that speedy trial, and by speedy trial, I mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty as enshrined in Article 4 as well as Article 10 -A of the
Constitution. The petitione r Jan Gul in petition No.392 of 2017 is a civil servant and keeping the
proceedings in abeyance under the mandate of Section 249 of the Cr.P.C for indefinite period is
nothing but amounting to a kind of punishment, because due to registration of a criminal case, he
has been suspended and his salary has also been stopped.
14. For the aforesaid discussion, I am of the considered view that `keeping a case in
abeyance', 'stopping proceedings under Section 249 of the Cr.P.C.' and 'ordering the cases to be
kept i n dormant' by the Sessions Courts, are not in line and within the jurisdiction of the Sessions
Courts, as such, the impugned orders are set aside and the cases are remanded to the respective trial Courts, with direction to proceed with the cases in accorda nce with law. The applications
moved on behalf of the petitioners under Section 265- K of the Cr.P.C. shall be deemed to be
pending. The trial Courts shall decide the fate of cases as well as said applications on the basis of available evidence.
The petitions are, accordingly, disposed of in view of the above terms. Registrar of this
Court shall circulate the copy of this order to all learned Sessions and Additional Sessions Judges of the Province of Balochistan for compliance.
MH/188/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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