P L D 1965 (W (PLP)

Dates of hearing : 29th and 30th October 1964. This judgment will dispose of two criminal miscellaneous applications bearing Nos. 274 of 1964 and 280 of 1964, in each of which the applicants have prayed for the quashing of the prosecutions now pending against them in the Court of the Special Judge‑cum‑Enquiry Officer, Hyderabad Camp, at Karachi. I have heard Mr. Z. T. Ahmad on behalf of the applicants and Mr. Haleem, Assistant Additional Advocate‑General on behalf of the State.

2. It appears that in November 1959, a complaint on behalf of Messrs Azizul Haq & Sons, a firm of contractors, that had secured the contract for dismantling a Tin Garrage at Hub River, was addressed by them to the Deputy Superintendent of Police, Police Headquarters, McLeod Road, Karachi, complaining against the nefarious demands of certain departmental officials of the P. W. D. Bela Irrigation Division, and accusing them of misappropriating public monies by preparing bogus Muster Rolls. On the strength of this complaint, a case was registered on 28‑11‑59 under sections 409/109, P. P. C. and an investigation was entered upon by the police. This investigation continued throughout the following two years of 1960 and 1961, and it was only on 6‑1‑62 that it concluded in a charge‑sheet presented in Court that day against the present four applicants. The sanction for this prosecution was only obtained six months later in June 1962. In the course of this investigation, the present four applicants were arrested in the months of September and October 1961, and one of them, Sibte Abbas, was arrested as early as February 1961. They were first produced before Mr. Abrar Hassan Khan, S. D. M., Karachi, from where the case was transferred to the Court of the Special Judge, Karachi. From that Court, the case was again transferred to the Court of the Sessions Judge, Karachi, where it was pending from 13‑3‑62 to I1‑12‑62 during which period there were 12 dates of hearing, but no progress made at all. From this Court, the case was again transferred to the Court of the Additional Sessions Judge, Mr. Fazal Illahi Ansari, and from there it was transferred to the Court of Mr. Azizullah M. Memon, Special Judge‑cum‑Enquiry Officer, Hyderabad, Camp at Karachi. Throughout these many transfers from Court to Court, the applicants were called upon and had to furnish fresh security in each subsequent Court, and it was stated before me at the Bar that in some instances on account of their inability to obtain fresh securities some of them committed to prison until they did so. Ultimately, the case against these applicants ended in their discharge by the Special Judge‑cum‑Enquiry Officer, Hyderabad, Camp at Karachi by his order dated 13‑5‑63 in which he held that the sanction was defective because it was inconsistent with the charge made out against the applicants, and it also suffered from certain other defects such as absence of the date of the commission of the offence and of any details showing the precise part played by each accused person in the commission of the offence. I observe that Mr. Azizullah M. Memon concluded this order of discharge in these words:‑-- "This is a more than three years old matter. It is true that there is no bar to a fresh trial of the accused after obtaining a valid sanction; but in view of such a long delay in the trial, the authorities may consider the advisibility of dealing with this matter departmentally, if they so deem fit."

3. On 7‑8‑63, two fresh sanctions bearing Nos. 3E/21/475‑C/CE/QTA/63 and 3E/21/476‑C/CE/QTA/63 were obtained from the Chief Engineer, Irrigation Quetta Zone, Quetta, for the prosecution of the present applicants and on the strength of these two sanctions, the original case against the present applicants was split up into two cases being Special Case No. 167 of 1963 against applicants Amanullah Khan and Ahmad Mohiuddin and Special Case No. 168 of 1963, against applicants Sibte Abbas, Amanullah Khan, Ahmad Mohiuddin and Mashadi Hussain. These two cases were again set down for hearing in the Court of the Special Judge‑cum? Enquiry Officer, Hyderabad Camp at Karachi, and although there were again several dates of hearing between the months of August 1963 and May 1964, no progress was made and not a single witness examined. It was in the month of May 1964 that the applicants approached this High Court with the present two criminal miscellaneous applications, praying for the quashing of the proceedings in the two special cases, bearing Nos. 167 and 168 of 1963.

4. It has been urged before me by their Advocate Mr. Z. T. Ahmed that it is now almost five years since the F. I. R: in this case was lodged against these applicants, and that this inordinate delay both in the investigation into and in the trial of this case amounts to an abuse of the process of the Court sufficient to vitiate these proceedings. The learned Advocate has also submitted that this lapse of 5 years has gravely prejudiced his clients in putting forward their defence to the charges made against them. After this delay of five years, it would be difficult for the applicants to be able to contact the coolies and Khalasis who were engaged in the dismantling of this garrage in the year 1959. Finally, the defence Advocate has pointed out that the prosecution as a result of this delay have been improving upon their case, and in support of this contention he has drawn my attention to the improvements in the second sanction obtained in August 1963 upon the previous sanction of June 1962, and how the defects in the original sanction as pointed out by Mr. Azizullah M. Memon the then Special Judge? cum‑Enquiry Officer, Hyderabad at Karachi, have been amended and cured in the second sanction obtained for this prosecution.

5. On the other hand, Mr. Haleem appearing on behalf of the State has submitted that it is not every delay in investigation or in the conduct of a prosecution that suffices to vitiate those proceedings. It is necessary for the Court to see whether there is a good reason for this delay, and whether it can be justified. Mr. Haleem submitted that in the present case the mass of the records to be examined, the number of prosecution witnesses to be secured many from outside Karachi and later examined, the many files to be obtained from various departments, all contributed to the delay in the investigation of this case. Hence, according to the learned State counsel, the delay that has occurred both in the progress of the investigation and in the prosecution of this case can be justified and, therefore, this delay by itself is not a sufficient reason for quashing the present two prosecutions now pending against the applicants. Both the defence Advocate as well as Mr. Haleem have placed before me a number of reported cases in support of their respective contentions.

6. Now, dealing this matter as a whole, I find I cannot get away from the fact that there has been an unconscionable delay both in the investigation of this case as well as in its conduct in Court. From the facts set out in the above paragraphs, it is plain that although the F. I. R. was registered on 28‑11‑59, the challan was only presented in Court more than a year later on 6‑1‑62, and the sanction obtained more than 18 months later in June, 1962. Thereafter this case was travelled from Court to Court necessitating on each occasion the applicants furnishing fresh security to the satisfaction of the new Court. From the Court of the Magistrate, it went to the Court of the Special Judge, and from his Court to the Court of the Sessions Judge, where it remained from 13‑3‑62 to 11‑12‑62 during which period the applicants had to attend 12 hearings, all in vain. It was then transferred to the Court of the Additional Sessions Judge where there were three hearings, all in vain. On 28‑3‑63, it was transferred to the Court of Mr. Azizullah M. Memon who on 13‑5‑63 passed his order of discharge referred to above. It took the prosecution three months to obtain the amended sanction in August 1963, and from then till May 1964 there have been six dates of hearing in the Court of the Special Judge‑cum‑Enquiry Officer, Hyderabad, Came at Karachi, but no progress made beyond reading out of the substance of the accusation to the accused and taking their pleas. In the 9 months from August 1963 till May 1964, not a single witness has been examined, and not a line of evidence recorded. It seems to me that these inordinate delays both in the investigation into this case and in its progress in Court suffice to place this case on a par with the cases of Malik Fazal Karim v. The State (P L D 1957 Lah. 837), Muhammad Hussain v. The State (P L D 1959 Lah. 322), The State v. Qamar‑uz‑Zaman (P L D 1960 Lah. 1199) and the case of The State v. Shakoor Hashim Patel (P L D 1960 Kar. 926). In each of these cases, their Lordships of the West Pakistan High Court have deprecated' inordinate delays‑in the disposal of criminal cases and have held such delays to be an abuse of the process of the Court. I have also considered the case of Ghulam Qadir Khan v. The State (P L D 1963 Lah. 32) relied upon by the learned Assistant A. A.‑G. and in particular the passage therein, wherein it is pointed out that: "If there is good reason for delay in the investigation stage, by reason of say, the complexity of the case, the magnitude of the evidence to be collected, or the disappearance of the accused persons, it is clear that such a delay will not constitute a good reason for quashing the proceedings." In my opinion, the criteria mentioned in this passage as possibly justifying a delay have no application to the facts of the present case, and I am definitely of the view that the delay both in the investigation of this case and in its conduct in Court, amount to an abuse of the process of the Court, sufficient to vitiate the proceedings.

7. For these reasons, then, I allow these two miscellaneous applications, and direct that the two prosecutions now pending against the applicants in the Court of the Special Judge‑cum? Enquiry Officer, Hyderabad at Karachi, be quashed. K.B.A.???????????????????????????????????????????????????????????????????????????????????????????????? Proceedings quashed.