P L D 2023 Lahore 334
NADEEM SULTAN and another Versus HAMZA SHAMIM
Criminal Revision No. 91 of 2022
"Sine die"---Definition.
"without day - with no day being assigned - to end a deliberative assembly's or court's session without setting a time to reconvene."
In Webster's Unabridged Dictionary, 2nd Edition, following meanings are assigned to sine die:-
"without fixing a day for future action or meeting."
S. 344 CrPC---Power to postpone or adjourn proceedings---Sine die adjournment---Scope---Case had been adjourned sine die solely because one of the co-accused had not been arrested yet---Validity---Such reason alone did not justify the sine die adjournment of the case to the extent of the petitioners---Accused had a right to an expeditious decision in a criminal case and the pending lis could not have been used as a sword of damocles through a sine die adjournment---Continuation of the trial in the normal course would have served the ends of justice better---Although one of the co-accused was still at large, no one could say with certainty when the police would apprehend him---Recording of the prosecution evidence would have preserved the statements of the prosecution witnesses---If any of them were unavailable due to death or for any other reason upon the arrest of the absconding co-accused, their deposition could be legally brought on record in accordance with Art. 47 of the Qanun-e-Shahadat, 1984
Section 344(1) of the Cr.P.C. lays down guidelines for the postponement or adjournment of a case---It prohibits the Sessions Court from adjourning a case without specifying a date or for an indefinite period---Use of the expression "from time to time" in the provision indicates that the case can only be adjourned for a specific date and not indefinitely---Adjournment can only be made due to the absence of witnesses or for any other reasonable cause---Therefore, the Sessions Judge is empowered to adjourn the case from time to time and, if necessary or advisable, for a specific date---Section 344(1) explicitly states that the case must be adjourned to a specific date and the provision restrains the Sessions Judge from adjourning or postponing a case indefinitely.
Ss. 249 & 344 CrPC---Power to stop proceedings when no complaint---Power to postpone or adjourn proceedings---Scope---Legislature has placed a specific embargo on the use of S. 249 of the CrPC in complaint cases and this provision only applies to State cases---Trial proceedings can be stopped by the Magistrate with the mandatory previous sanction of the Sessions Judge---Chapter XX of the Cr.P.C. exclusively deals with trials conducted by Magistrates and thus does not apply to trials conducted by Sessions Courts.
Trials before High Courts and Courts of Session---Sine die adjournment---Scope---Criminal Procedure Code, 1898 stipulates that sessions trials must adhere to the protocol outlined in Chapter XXII-A, Cr.P.C.---However, this chapter does not contain any specific provision that allows a sessions trial to be postponed indefinitely without a definite date.
Art. 47 Qanun-e-Shahadat---Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated---Scope---Evidence given by a witness in judicial proceeding is relevant in a subsequent judicial proceeding between the same parties, if such witness is dead or cannot be found or becomes incapable of giving evidence or is kept out of the way by the adverse party.
Evidence includes all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and all documents produced for the inspection of court.
Judicial proceedings include any proceeding in the course of which evidence is or may be legally taken on oath.
Right to fair trial---Scope---Concept of due process rests in the idea that the legal proceedings be carried out in accordance with the established rules, express statutory provisions and settled principles for deciding the rights of litigants.
Interpretation of statutes---
----Dictionary meaning---If a word or expression is not defined in the Act from which the lis is arising, it is permissible to consult its dictionary meanings.
Courts can only interpret the law for applying it in letter and spirit---Giving a self-devised meaning or interpretation to a statutory provision is otherwise not permissible.
Literal interpretation---Golden rule of interpretation---Mischief rule---Purposive approach---Scope---Statutory interpretation involves four rules, with the literal rule being the first, followed by the golden rule, the mischief rule, and finally the purposive approach---Literal rule enables the Court to interpret the legal provision in its literal and ordinary sense and it cannot examine the intent of the Legislature---Golden rule can only be given effect if the literal interpretation gives rise to some irrationality---Under such rule, the Court can look into the legislative intent of a provision or a statute---Third rule of mischief can be used to see the unconstitutionality of the legislation---Purposive rule can be set in motion for ensuring the effectiveness of the law in accordance with the will of Parliament.
JUDGMENT
The instant petition moved under Sections 435 and 439 of the Code of Criminal Procedure, 1898 (hereinafter referred to as Cr.P.C.) read with Article 203 of the Constitution of Islamic Republic of Pakistan, 1973 is aimed at challenging the correctness, legality and propriety of order dated 22.04.2022 passed by learned Additional Sessions Judge, Rawalpindi whereby the trial stemming out of FIR No.385/2021 of Police Station Saddar Berooni Rawalpindi was adjourned sine die.
2. The facts which gave rise to the filing of the instant petition are to the effect that on 11.03.2021 one Shameem Haider was slain statedly by a bunch of assailants including Nadeem, Naeem and Umair for which a criminal case vide FIR No.385 dated 11.03.2021 under Sections 302, 324, 449, 34 and 109, P.P.C. was registered at Police Station Saddar Berooni, Rawalpindi. During investigation, Nadeem, Naeem and Umer were arrested by the police whereas their co-accused Umair who was ascribed the role of inflicting firearm injuries on the chest and abdomen of the deceased, opted to become fugitive from the process of law, thus was declared absconder. After the conclusion of police probe, the report under Section 173 Cr.P.C was submitted upon which Nadeem and Naeem (petitioners) along with co-accused Umer Iqbal were indicted on 16.09.2021. Subsequent thereto, the statements of five PWs were recorded and all of them were cross-examined by the defence. On 22.04.2022, the learned trial court through the impugned order adjourned the case sine die and the concluding para therefrom is being referred hereunder:-
"In these circumstances, the proceedings in this case are hereby stopped and the same will be re-commenced after arrest of main accused Umair. Nadeem Sultan, Naeem Sultan and Umar Iqbal accused are on bail in this case. They have already submitted their surety bonds. Their sureties shall remain intact. However, they are bound to appear in the Court whenever summoned. In the meanwhile, file be consigned to the record room after due completion with note with red ink that the file should not be destroyed and it will be requisitioned at the time of re-commencement of trial."
3. It is contended on behalf of the petitioners that the impugned order has been passed without adhering to the settled principles of conducting trials in murder cases and law on the subject; that the learned trial court for passing the impugned order wrongly took refuge under Section 344 of Cr.P.C which provides no scope for sine die adjournment to Sessions Trials; that once the accused is charge sheeted, there is no other option for the trial Court but to decide the ultimate fate of the case; that the entitlement to fair trial and due process is the fundamental right of an accused under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 and that since the impugned order is contrary to law on the subject and facts of the case, thus is liable to be set-aside.
4. On the other hand, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant came forward with the submissions that there is no express bar for sine die adjournment of a case thus no legal exception can be taken about the impugned order; that the main accused by design is at large and in such eventuality trial against co-accused will not meet the ends of justice; that the witnesses apprehend threat to their lives from the proclaimed offender, namely Umair and that since the impugned order is not contrary to law, thus the instant criminal revision merits no acceptance.
5. Arguments heard. Record perused.
6. A wade through the record reveals that Nadeem Sultan and Naeem Sultan along with Umair (co-accused) stand implicated in FIR No.385/2021 of Police Station Saddar Berooni with the allegation of having assassinated one Shameem Haider. So far as, Nadeem and Naeem (petitioners) are concerned, they were arrested in the case and later were successful in securing post-arrest bail. Their co-accused Umair Iqbal opted to become fugitive from the very inception of the case and despite the issuance of process under Chapter-VI of Cr.P.C, has yet not been arrested. The petitioners along with another co-accused Umer Iqbal were indicted by the learned Additional Sessions Judge, Rawalpindi on 29.11.2021 and the evidence of five prosecution witnesses was recorded. Subsequent thereto, complainant Hamza Shameem (respondent No.1) entered appearance before the trial court and through statement recorded on oath urged that since Umair (co-accused) is still at large, thus he does not want to produce the remaining evidence till his arrest. After recording the statement of complainant Hamza Shameem (respondent No.1), the case was adjourned sine die by the learned Additional Sessions Judge.
7. Keeping in view the genesis of the legal question involved herein, primarily, it is to be seen that what does the term "sine die" means and whether in Sessions trials such an order can be passed or not. The term "sine die" is a Latin word not defined anywhere in the Cr.P.C. It is the salutary principle of legal interpretation that if a word or expression is not defined in the Act from which the lis is arising, it is permissible to consult its dictionary meanings. The principle so mentioned above was even endorsed by the Hon'ble Supreme Court of Pakistan in the case reported as Chairman, Pakistan Railway, Government of Pakistan, Islamabad and others v. Shah Jahan Shah (PLD 2016 Supreme Court 534) with the following observation:-
"When a word has not been defined in the statute, the ordinary dictionary was to be looked at."
In the backdrop of what is mentioned above, it is observed that in different dictionaries, various meaning are assigned to the term sine die. In the Black's Law Dictionary 10th Edition, the term sine die is defined in the following manner:-
"without day - with no day being assigned - to end a deliberative assembly's or court's session without setting a time to reconvene."
In Webster's Unabridged Dictionary, 2nd Edition, following meanings are assigned to sine die:-
"without fixing a day for future action or meeting."
8. According to the scheme of things provided in the Cr.P.C, the Sessions trials are to be carried out in consonance with the procedure laid down in Chapter XXII-A. In the above Chapter, there is no express provision whereby a Sessions trial can be adjourned for an indefinite period, without an actual date. Though in Chapter XX of Cr.P.C, an enabling provision of Section 249 is incorporated to adjourn a trial for an indefinite period without pronouncing judgment, but such an order can only be passed by the Magistrate of the First Class. A specific embargo is placed by the Legislature that an order in terms of Section 249, Cr.P.C. cannot be passed in respect of a trial stemming out from a complaint case and the foregoing provision is restricted only to the extent of State cases. Moreover, the trial proceedings can be stopped by the Magistrate with the mandatory previous sanction of the Sessions Judge concerned. Even otherwise, Chapter XX of Cr.P.C exclusively pertains to the trial of cases by Magistrate, thus has no applicability upon a trial being conducted by Sessions Court. For reference sake, Section 249, Cr.P.C. is being mentioned hereunder:-
"Power to stop proceedings when no complaint. In any case instituted otherwise then 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 judgment either of acquittal or conviction an may thereupon release the accused."
9. The learned counsel for the complainant vociferously argued that the order of sine die adjournment passed by learned Additional Sessions Judge is protected under Section 344, Cr.P.C. In order to adjudge the applicability of Section 344(1), Cr.P.C to the facts of the case in hand, the foregoing provision is required to be meticulously scanned, thus is referred hereunder:-
"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 be a warrant remand the accused if in custody."
The plain review of Section 344, Cr.P.C reveals that even the foregoing provision does not enable the Sessions Court to adjourn the case without any date or for an indefinite period. The use of expression "from time to time" sheds no ambiguity rather manifests that the case can only be adjourned for a specific date and not for an indefinite period. The postponement or adjournment of a case under Section 344(1), Cr.P.C. can be made due to absence of witnesses or for any other reasonable cause. Admittedly, the case in hand was not adjourned sine die due to the absence of witnesses, rather it was owing to the delinquency of co-accused for not surrendering before the police. The question of paramount importance arises that what can be a reasonable cause in terms of Section 344(1), Cr.P.C. and the answer to this query is given in the explanation clause annexed with the foregoing provision, which on account of its relevancy is mentioned hereunder:-
"Explanation-Reasonable cause for remand. If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand."
Section 344(1) indeed restrains the Sessions Judge to adjourn or postpone the case for an indefinite period. As a matter of fact, Section 344(1) empowers a Sessions Judge to adjourn the case from time to time and needless to mention for a specific date if it is necessary or advisable. Even otherwise, it explicitly spells out from Section 344 (1) Cr.P.C that the case is to be adjourned for a specific date which appears to be reasonable to the Court. In this regard, the observation of Hon'ble Peshawar High Court given in case reported as Muhammad Amin v. Momin Khan and 2 others (PLD 2014 Peshawar 49) is being referred below:-
"The significant clause of section 344 Cr.P.C, curtails 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 upto 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, learned Sessions Judge has passed the impugned order, whereby proceedings has been adjourned for an indefinite period which is against the spirit and mechanism provided by section 344, Cr.P.C."
If any further reference in this regard is required that can be made to the cases reported as The State through Prosecutor General, Sindh v. Shahzad Riaz and others (2021 PCr.LJ 656), Abdul Rauf Gujjar v. Judge ATC-III, Lahore and others (2020 PCr.LJ 1259), Bakhtiar Khan v. The State (2018 MLD 72) and Barkat Hayat v. The State (2017 PCr.LJ 167).
10. The perusal of the impugned order reveals that the case was adjourned sine die solely due to the fact that one of the co-accused, namely, Umer Iqbal has yet not been arrested. For obvious reasons, due to the afore-mentioned fact the sine die adjournment of the case to the extent of petitioners was uncalled for. The expeditious decision of a criminal case is the right of an accused and the pending lis cannot be used as sword of Damocles through a sine die adjournment. In reference to the reason for which order of sine die adjournment was passed, I am of the considered view that the continuation of trial in normal course would have served the ends of justice. As mentioned above, one of the co-accused is still at large and no one can say with certainty that when he will be nabbed by the police. The recording of prosecution evidence will indeed preserve the statements of prosecution witnesses and if someone out of them is not available due to death or for any other reason upon the arrest of absconding co-accused, his deposition will legally be brought on record in terms of Article 47 of Qanun-e-Shahadat Order, 1984. Again, for the clarity of proposition a pressing need is felt to refer Article 47, which is as under:-
"Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable.
Provided;
The proceeding was between the same parties or their representative-in-interest; the adverse party in the first proceeding had the right and opportunity to cross-examine; the question in issue were substantially the same in the first as in the second proceeding."
The language of Article 47 impeccably reveals its relevancy to the view so formed above. Admittedly, the statements of witnesses recorded in the case will come within the definition of "evidence" given in Article 2 (c) of the Qanun-e-Shahadat Order, 1984 and the "judicial proceedings" mentioned in Section 4(m) of Cr.P.C. According to Article 2 (c) ibid, evidence includes all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and all documents produced for the inspection of court. Likewise, as per Section 4(m) ibid, the judicial proceedings include any proceeding in the course of which evidence is or may be legally taken on oath. According to Article 47, the evidence given by a witness in judicial proceeding is relevant in a subsequent judicial proceeding between the same parties, if such witness is dead or cannot be found or becomes incapable of giving evidence or is kept out of the way by the adverse party.
11. Last but not the least, the Courts can only interpret the law for applying it in letter and spirit but run out of jurisdiction for giving a self-devised meaning or interpretation to a statutory provision which otherwise is not permissible. It will be a fallacious approach to devise a procedural mechanism for the sine die adjournment of the case, more importantly when it goes contrary to the express provision of Section 344(1), Cr.P.C. Recasting of a procedure by a Court when it has no such power is destined to destroy the legal fabric of the law made by the Parliament. There are four rules of statutory interpretation and first out of them is literal rule, the second golden rule, the third mischief rule and fourth purposive approach. The literal rule enables the Court to interpret the legal provision in its literal and ordinary sense and cannot examine the intent of the Legislature. The golden rule can only be given effect if the literal interpretation gives rise to some irrationality. Under such rule, the Court can look into the legislative intent of a provision or a statute. The third rule of mischief can be used to see the unconstitutionality of the legislation. The purposive rule can be set in motion for ensuring the effectiveness of the law in accordance with the will of Parliament. In the instant case, the rule of literal interpretation is to be followed for ascertaining the legislative wisdom of Section 344(1), Cr.P.C and it can be held beyond shred of ambiguity that an order of sine die adjournment, that too due to the abscondence of the co-accused, cannot be passed. In somewhat similar background and while dealing with an order of sine die adjournment, the Hon'ble Balochistan High Court in case reported as Sadullah and another v. The State (PLD 2018 Balochistan 39) observed as under:-
"It is well settled principle of law that omissions in a statue 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 neither to add to, nor to take from, a statute anything, unless there are good grounds for thinking that the Legislature intended something."
12. With the insertion of Article 10-A in the Constitution of Islamic Republic of Pakistan, 1973 through Eighteenth Amendment, the fair trial and due process is the entitlement of every person. The concept of due process rests in the idea that the legal proceedings be carried out in accordance with the established rules, express statutory provisions and settled principles for deciding the rights of litigants. Unambiguously, the impugned order is contrary to the procedure laid down for the Sessions trials, thus by no stretch comes within the definition of due process.
13. The afore-mentioned discussion can be encapsulated to the effect that the impugned order suffers from perversity, thus is set-aside by accepting the instant criminal revision.
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