P L D 2001 Karachi 211
Before S.A. Rabbani, J
ARSHAD HUSSAIN---Petitioner
versus
THE STATE----Respondent
Criminal Bail Application No. 1292
of 2000, decided on 9th January 2001
(a) Criminal Procedure Code (V of
1898)---
----Ss. 87 & 88---Proclamation
for person absconding and attachment of his property---Issuance of a warrant
against the accused person is a precondition for proclamation or proceeding
under Ss. 87 & 88, Cr.P.C. against him.
(b) Criminal Procedure Code (V of
1898)---
----S. 173---Report of police
officer---Essentials---Essentials of a challan produced by the police before
the Trial Court include a description of the offence committed production of
the accused before the Court and the evidence/witnesses to prove the offence---Trial
Court can start the trial only when all these three are produced before it.
(c) Criminal Procedure Code (V of
1898)---
----Ss. 173, 87, 88 &
512---Issuance of warrants by Trial Court against absconder not mandatory---No
provision. of law in the Code of Criminal Procedure makes it mandatory for the
Trial Court to issue warrants against an alleged accused person mentioned in
the report by the police as absconder---Investigation agencies by mentioning
the absconded accused in the report attempt to shift their responsibility to
the Courts which is not in line with the law.
Raghunath Puri and others v. Emperor
AIR 1932 Pat. 72; Gopal Marwari and others v. Emperor AIR 1943 Pat. 245 and
Bacha Said v. The State PLD 1978 SC 102 ref.
(d) Criminal trial---
---- Commencement of---Guidelines to
avoid unnecessary delay in trial--¬Criminal Courts are advised to start trial
against the accused produced before them by ignoring mention of alleged
absconders in the police report where their parentage and addresses are not
known and ordering separation of trial against the alleged absconders when
their parentage and addresses are given in the police report.
In the interest of justice and to
avoid unnecessary delay in trials, Criminal Courts in the Province may be advised
to start trial against the accused produced before the Court, by--
(i) ignoring mention of alleged
absconders in the police report where their parentage and addresses are not
known; and
(ii) ordering separation of trial
against the alleged absconders when father's name and address is mentioned in
the police report.
(e) Criminal Procedure Code (V of
1898)---
----S. 497(1), third proviso---Penal
Code (XLV of 1860), S. 302---Bail or ground of statutory delay---Accused was
-in custody for the last more than five years and even the charge had not yet
been framed against him by the Trial Court---Accused, thus, had earned a -legal
right to bail which could not be defeated by the fact that police had involved
him in other cases also---Bail was allowed to accused accordingly.
Raghunath Puri and others v: Emperor
AIR 1932 Pat. 72; Gopal Marwari and others v. Emperor AIR 1943 Pat. 245 and
Bacha Said v. The State PLD 1978 SC 102 ref.
Agha Zafir for Petitioner.
Sharafat Ali Khan for the State.
Date of hearing: 8th January, 2001.
JUDGMENT
The applicant was sent up before the
Sessions Court, Karachi Central, to face trial for a murder registered in
F.I.R. No. 427 of 1995 'at Police Station, New Karachi.
It is contended by Mr. Agha Zafir,
Advocate for the applicant, that the applicant is in custody in this case since
1995 but even the charge has not been framed for the trial. The bail is mainly
sought on the ground of delay in conclusion of trial beyond two years.
A report was called from the trial
Court to know, the reasons why the charge in this case could not be framed
during the last 5 years' period. It has been reported by the trial Court that
in the charge-sheet 18 persons were shown as absconder accused and, therefore,
charge could not be framed, as proceedings under sections 87 and 88 of Cr.P.C.
were undertaken to declare them proclaimed absconder. Thus, warrants were being
issued against them in order to take action under sections 87 and 88, Cr.P.C.,
so that evidence could be recorded in the absence of those accused persons
under section 512(1), Cr.P.C. which reads as under:
"512(1).--If it is proved that
an accused person has absconded, and that there is no immediate prospect of
arresting him, the Court competent to try or send for trial to the Court of
Session or High Court such person for the offence complained of may, in his
absence examine the witnesses (if any) produced on behalf of the prosecution
and record their depositions. Any such deposition may, on the arrest of such
person, be given in evidence against him on the inquiry into, or trial for, the
offence with which he was charged, if the deponent is dead or incapable of
giving evidence for his attendance cannot be procured without an amount of
delay, expense or inconvenience which under the circumstances of the case,
would be unreasonable."
2. This section empowers a Court to
examine prosecution witnesses in the absence of an accused person who has
absconded and that evidence could be used against him in the trial after he is
arrested. The essential to act upon this section is proof that the accused
person has absconded. As has become a practice, for this purpose, proceedings
under section 87, Cr.P.C. are started in every case where an accused is
reported to be an absconder. Section 87(1), Cr.P.C. is as under:--
"87(1).--If any Court is
satisfied after taking evidence (that any person against whom a warrant has
been issued by it has absconded or is concealing himself so that such warrant
cannot be executed, such Court may publish a written proclamation requiring him
to appear at a specified place and at a specified time not less than thirty
days from the date of publishing such proclamation."
3.. It is clear that a Court can
initiate proceedings under section 87, Cr.P.C. against a person against whom a
warrant has been issued by it. Thus, the fact that a warrant has been issued
against an accused person is a precondition for proclamation or proceeding
under sections 87 and 88, Cr.P.C. Section 87, itself, does not make it
mandatory for the Court to issue warrant against any accused. The question,
therefore, is what is the legal requirement for issuing a warrant by the Court
against an accused, alleged to have absconded.
4. There may be two different
circumstances relating to this situation. There may be a case where an accused
has been, produced before the Court to face a trial. He may be in judicial
custody or on bail granted by the Court, whereby custody is transferred to the
surety. In that case, if the accused absconds, it would be the responsibility
of the Court trying the case to make efforts for his arrest and, for that
purpose, the Court issues warrants against that accused person and, thereafter,
on its basis, proceedings under section 87; Cr.P.C. are taken and a
proclamation is issued, and after completion of these proceedings under
sections 87 and 88, the record of evidence under section 5120), Cr.P.C. would
be legally justified.
5. The other case is where the
investigation officer or the; S.H.O. mentions a name in a report under section
173, Cr.P.C. as a person, involved in an offence, to have absconded. This is a
case where the alleged accused is not brought before the Court.
6. The report under section 173,
Cr.P.C. is submitted before the Court after the investigation in a case
registered on the F.I.R. under section 154, CC.P.C. F.I.R. under section 154,
Cr.P.C. is registered with regard to cognizable offences. A cognizable offence
is one in which the S.H.O. concerned has been empowered by law to arrest an
accused person without a warrant. Thus, in a case of cognizable offence, the
S.H:O., of the police station, or the investigation officer, has powers to
arrest the accused without warrant and has also a responsibility under the law
to arrest him and produce him before the Court for trial.
7. If the S.H.O. or the
investigation officer does not arrest an accused person involved in a
cognizable offence, or fails to arrest him due to' incompetence or
inefficiency; any ulterior motive, or for any other reason, the S.H.O. or the
investigation officer cannot transfer his legal responsibility to the Court by
merely mentioning the name of a person in the report with an observation that
he has absconded.
8. There is absolutely no logic why
the Court should issue a warrant for arrest of an accused who can be arrested
under the law, by the police without a warrant. The law does not require issue
of a warrant merely to fulfil a formality to make a case for proceeding under
section 87, Cr.P.C. Even otherwise, there is no sense in issuing a warrant to
the same police officer for arrest of an accused about whom he has already
submitted a report reflecting his failure to arrest him despite powers to
arrest him without a warrant.
9. Substantially there are the
following three essentials of a challan produced by the police before the trial
Court, or a report under section 173, Cr.P.C. They include a description of the
offence committed, production of the person who has committed the offence, and
the evidence/witnesses to 8 prove the offence. The trial Court can start trial only
when all these three are produced before it. An investigation is not complete
till the person, who committed the offence, is available with the investigating
agency for production before the Court.
10. On request, Mr. M. Ashraf Kazi,
Senior advocate, has been gracious to assist the Court on this subject. He
referred to section 204, Cr.P.C. and submitted that in both the cases where
cognizance has been taken under clause (a) or clause (b) of section.190,
Cr.P.C., a warrant may be issued under section 204, Cr.P.C. In support of the
proposition, he cited AIR 1932 Patna 72 (Raghunath Puri and others v. Emperor)
and AIR (30) 1943 Patna 245 (Gopal Marwari and others v. Emperor). He submitted
that the Court, in order to satisfy itself whether the person has really
absconded, may issue process in the form of a warrant for his arrest.
11. Even if section 204, Cr.P.C.
applies in both cases under section 190, Cr.P.C it is an empowering provision.
It does not make it mandatory for the Court to issue warrant against every
person mentioned by the police as an absconder in its report under section 173,
Cr.P.C. In some of the cases no parentage and address of such an absconder is
mentioned in the report. In the present case also, the police report mentions
that father's name and address of many of the alleged absconders are not known.
In such a case, neither a warrant can be issued for arrest of any person having
that name, nor property of such a person can be attached under section 88,
Cr.P.C.
12. Mr. Ashraf Kazi also cited the
case of Bacha Said v. The State (PLD 1978 SC 102). In that case, the Supreme
Court observed that it is not necessary to resort to proceedings under sections
87 and 88, Cr.P.C. for proof of abscondence in every case.
13. There is, thus, no provision of
law making it mandatory for the trial Court to issue warrants against an
alleged accused person mentioned in the report by the police as absconder. By
making a mention of absconded accused persons the investigation agencies
attempt to shift their responsibility to the Courts, which is not in line with
the-law.
14. Under section 173, Cr.P.C. the
investigation in a case by a police officer is to be completed without
unnecessary delay and when the investigation is complete, the report is to be
forwarded to the Court and if the investigation is not complete within 14 days,
an interim report is to be submitted before the Court. Under this section, the
Court is to commence the trial on the basis of such interim report but, for
reasons to be recorded, the Court may decide that the trial should not so
commence.
15. Thus, on such an interim report,
in a case where an accused is mentioned as an absconder by the police, the
Court cart commence the trial, if that can be done, against another accused
produced before the Court. In view of this provision, there is a way before the
Court to deal with the matter on the basis of circumstances of the case
mentioned in the interim report.
16. An investigation in a case
cannot be deemed to be complete till an accused person, mentioned as an
absconder, is yet to be arrested. Thus, a case in an interim report may be
where an accused is produced before the Court and some other person is reported
to be an absconder. The other case may be where no accused is produced before
the Court with the interim report. In the case where no accused is produced
before the Court, the Court may decide not to commence the trial for absence of
the accused and the case may, accordingly, be kept on dormant file to start
trial whenever the accused is produced by the police before the Court.
17. In the other case, where an
accused is produced before the Court, trial may commence against the accused
present, and the trial against the alleged absconder accused may be postponed
till his arrest and production before the Court. It is not mandatory for the
Court in such cases to issue warrants against the alleged absconder and to
postpone trial of the accused produced before the Court, till the arrest of the
absconder, or for proceedings under sections 87 and 88, Cr.P.C. against him. As
a matter of fact, a Court is concerned with an accused person who is produced
before it for trial.
18. The practice, being followed by
the Courts in the Province, that the trial against the accused present is
postponed till proceedings under sections 87 and 88, Cr.P.C. are complete
against the alleged absconders, only delays the trial, for which the accused
already present for trial suffers, as is the case of the present applicant.
This practice is a cause of injustice, and it is extremely rare that evidence
recorded under section 512, Cr.P.C. in absence of an accused is materially used
against him in the trial after his arrest.
19. In the interest of justice and
to avoid unnecessary delay in trials, Criminal Courts in the Province may be
advised to start trial against the accused produced before the Court, by---
(i) ignoring mention of alleged
absconders in the police report where their parentage and address are not
known; and
(ii) ordering separation of trial
against the alleged absconders when father's name and address is mentioned in
the police report.
20. Since the present applicant is
in custody for the last more than five years and even the charge has not been
framed against him, he has earned a legal right to bail and this right cannot
be defeated by the fact that the police has involved him in a number of other
cases also. Mr. Sharafat Ali Khan, learned State Counsel, conceded to the grant
of bail in view of these facts of the case.
21. The applicant has been admitted
to bail subject to surety in the sum of Rs.2,00,000, through a short order.
Preceding paragraphs explain the reasons for the grant of bail. Copy of this
Order be circulated for guidance of the Criminal Courts in the Province.
N.H.Q./A-112/K Bail allowed.
