IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.
Cr. Misc. Appln. No. S- 339 of 2024.
Date of hearing Order with signature of Judge.
1.For orders on M.A No. 5588 of 2024.
2.For orders on office objection as flag A.
3.For orders on M.A No. 5589 of 2024.
4.For hearing of main case.
5.For orders on M.A 5590 of 2024.
25.9.2024.
Mr. Rafique Ahmed Abro, advocate for the applicants.
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1. Granted.
2. Deferred.
3. Granted subject to all just legal exceptions.
4&5. Through this criminal miscellaneous application, the applicants have impugned an order dated 16.9.2024 passed by learned Civil Judge and Judicial Magistrate-I, Thul, whereby he disagreed with the report filed under Section 173 Cr.P.C under C Class and took the cognizance.
At the outset, the learned counsel for the applicants submits that the alleged incident occurred on May 31, 2023. Since then, the investigation has been ongoing but remains unresolved due to non-recovery, Mst. Nusrat. ( Abductee). The counsel for the applicant submits that during the investigation, the DIGP Larkana constituted a Joint Investigation Team (J.I.T.) to recover the alleged detainee. According to the J.I.T. report, the abductee left her residence as she wished and proceeded to Punjab. At a bus stand, she came across one Farman Ali and used his mobile phone. The Investigating Officer (I.O.) also obtained the Call Data Record (C.D.R.) for Farman Ali, which indicates that she contacted one Zahid Saleem, who has not been apprehended by the investigating officer.
The counsel refers to the C.D.R. reports collected by the J.I.T., which demonstrate that the present applicants were not present at the place of the incident. Prior to the conclusion of the investigation, the mother of the alleged Abductee, Mst. Janul filed C.P. No. D-497 of 2023, which is currently pending adjudication before the division bench of this court. Per the order dated November 1, 2023, in the petition mentioned above, the police have made extensive efforts to recover Mst. Nusrat, but have been unsuccessful as she remains missing in province of Punjab.
It is tentatively observed that Article 10-A of the Constitution of Pakistan guarantees every individual the right to a fair trial, which includes access to all evidence that may influence the outcome of the case. Conducting a trial in the absence of an abductee undermines this principle, as her testimony is crucial for establishing the circumstances surrounding the alleged abduction. The recovery of Mst. Nusrat is pivotal; if she is later found and her statement differs from the proceedings conducted in her absence, it could significantly alter the case's landscape. A witness’s account can change the understanding of events, and her absence jeopardizes the completeness of the evidentiary record. If the trial concludes with a verdict, whether acquitting or convicting the accused and Mst. Nusrat subsequently provides evidence that it would raise profound concerns regarding judicial integrity and, potentially eroding public confidence in the judicial system. The I.O of Crime No.38 of 2023 of P.S B-Section Thul is directed to continue his efforts for the recovery of the alleged abductee and ensure her recovery and production before this court.
Let notice be issued to the respondents as well as Addl. P.G. for 08.10.2024. I.O of Crime No.38 of 2023 of P.S B-Section Thul is directed to be present on the next date of hearing. In the meantime, the operation of the impugned order is suspended till the next date of hearing.
JUDGE
shabir