1976 PLP 204 (SCMR)

MUHAMMAD YAQUB ALI, J.‑Rehmat Ali and Wali Muhammad, appellants, were accused of offences under sections 419, 420, 467 and 477‑A read with section

109. P. P. C. and section 5(2) of the Prevention of Corruption Act II of 1947. The Special Judge who tried the case discharged the appellants on the ground that they were earlier tried alongwith others under sections 419, 420, 467, 477 read with section 109, P. P. C. arid section 5(2) of Act II of 1947 in connection with similar transaction and acquitted. Reliance was placed on the provisions of section 403, Cr. P. C. The State filed a revision petition against the order of the Special Judge which was accepted by the erstwhile High Court of West Pakistan. Karachi Seat, and the case remitted to the Special Judge for trial of the appellants for the aforesaid offences. Leave to appeal was granted to examine correctness of the view adopted by the High Court in regard to application of section 403, Cr. P. C. to the facts of the case. The relevant facts are that on 10‑11‑1957, one Mohammad Sharif, son of Muhammad Shakirullah lodged an P. I. R. at the Police Station Naushero Ferozo to the following effect:‑

"Some fictitious person having posed himself as my father Mian Mohammad Shakirullah and the petition writers Ghulam Khan and Hidayatullah having certified such fake man as my father Mohammad Shakirullah, scribed the document and got the attune registered before the Sub‑Registrar by giving him such assurance and. Rehmat Ali (paper torn) has got the document executed in his favour from the poser Mohammad Shakirullah (paper torn) the said land of my father has been mutated in the name of Rahmat Ali and other 14 persons shown in the document although the land is in our possession and under our cultivation: A case was registered against the: aforesaid person under sections 419, 410, 468, 467 read with section 109, P. P. C. and' section 5(2) of the Prevention of Corruption Act, II of 1947. On 21‑10‑1958, the appellants and their co‑accused were sent up for trial before the Special Judge Hyderabad, who held that the case was triable by an ordinary Court and discharged the accused. Accordingly on 14‑7‑1962 a fresh challan was put up in the Court of a Magistrate who convicted the appellants and sentenced them to two years R. I. and a fine of Rs. 500 each. Their co‑accused Gulab and Hidayatullab were acquitted. On appeal, the Additional Sessions Judge, Nawabshah, acquitted the appellants by judgment delivered on 13-7‑1965, holding that the prosecution had failed to prove the case against the accused beyond doubt. The State filed a revision petition against the order of acquittal which was dismissed by a learned Judge on 18‑11‑1968 in the view that the judgment of acquittal was neither grossly unreasonable nor perverse to call for interference. 1959, another case was registered against the former Sub‑Registrar, his clerk and the appellants on the report made by his successor that the thumb‑impression of the person who had personated as Shakirullah had been removed from the Thumb Print Register. This offence had presumably been committed to destroy the evidence of guilt in the former case registered against the appellants and others under sections .419, 420, 467 and 477 read with section 109, P. P. C. and section 5(2) of the Prevention of Corruption Act II of 1947. After a protracted inquiry the Circle Officer, Anti‑Corruption filed a challan against the appellant and the Sub‑Registrar and his clerk under section 467, P. P. C. read with section 5(2) of the Prevention of Corruption Act. II of 1947. As mentioned earlier, the Special Judge discharged the accused on the application of section 403, Cr. P. C. but on a revision petition filed by the State the order was set aside and the case remitted to the Special Judge for trial on merits. Thus the only question which requires determination is whether the acquittal of the appellants in the former case was under section 403, Cr. P. C, a bar to their prosecution is the present case. The answer to the question depends on nature of the accusations made in the two cases. Iv the first case, the accused were charged as under:‑-. "That you accused Ghulab and Wali Muhammad, on 29th day of April 1957, forged a certain document purporting to be a valuable security to wit a sale‑deed purporting to have been executed by Mian Shakirullab, transferring his land to Wali Muhammad and others with intent to defraud and cause damage to Mian Shakar ullah and thereby you committed an offence under section 467, P. P. C. and within the cognizance of this Court. And you accused Rehmatali and Hadayat Ullah attested the above sale‑deed and thereby abetted the forgery of the sale deed and thereby committed offence under section 467, P. P. C. read with section 114, P. P. C. and within the cognizance of this Court." It is manifest that the accused warp charged for forging a valuable document, false personation by one of the accused as 'Shakirullah', owner of the land and false identification of one of the accused as 'Shakirullah'. No forgery or fabrication of the record of the Sub‑Registrar was alleged in this case. The present case was registered on the flowing report by the new Sub. Registrar, on the following accusation:- "It is alleged by the prosecution that you accused Muhammad Moosa, were posted as Sub‑Registrar, Naushero Feroae, District Nawabshah, and you accused Ata Muhammad were his clerk in the year 1957‑58 and as such both of you were public servants. Both of you and you accused Ghulab Khan, stamp vendor, Rehmat Ali and M ah Muhammad, in collusion with one another, managed to, remove away from the Thumb Print Register of the office, forged thumb impression of Mian Muhammad Shakirullah (which was axed by Wali Muhammad accused) and got a bogus thumb‑impression, substituted therein, in order to dishonestly save accused Wali Muhammad from criminal prosecution for the offences of cheating and forgery in crime No. 4 of 1958 of Ante‑Corruption Police, Nawabhshah, against Wall Mohammad etc. You accused Muhammad Moosa also got the name of Mian Mohammad Shakirullah son of Mian Karamatullah written by Wali Mohammad co‑accused, in the thumb print register of the office of the Registrar, Naushero Feroze. And thereby committed offences punishable under sections 419, 420, 467, 477‑A, and 109, P. P. C. and section 5(3) of the Prevention of Corruption Act, 1947: A men perusal of the accusations made in the two cases is sufficient to rule out the application of section 403, Cr. P. C. The transaction in each case is altogether different so that it could not be said that the appellants had been earlier tried and acquitted of identical or similar offences. It was nest argued in the High Court that in view of distance of time when the offence took place in the present case, it was improper to direct retrial of the appellants at this late stage. The plea did not find favour with the learned Judge of the High Court and we are in complete accord with him. It is true that the offences with" "which the appellants are charged allegedly took place in 1957 but the delay by itself does not furnish a proper ground for discharging the accused of such serious offences In this connection the learned Judges in the High Court have relied on the decision of this Court in M. S. Khawaja v. Tire State (P L D 1965 S C 287) wherein it ,was said: "The impression is gained from these questions that in the learned Single Judge's view, time was of the essence for the competency of a criminal prosecution, and to that extent, we must observe that his views cannot be accepted as of universal application. Limitation does not apply to criminal prosecution, and it is also inappropriate to examine question of delay through the actions of the Government, or the prosecution authorities, as if they gave rise to equities, on tile same footing as in a civil matter inter parses. Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the State. It can only be in a very rare case that a superior Court acting under its inherent power to prevent abuse of the process of any Court or otherwise to secure the ends of justice, would deem it appropriate to act so as to place an alleged offence outside the operation of the criminal law, on incidental grounds such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of as offence in law." On hearing the learned counsel for the appellants, we are not persuaded to differ with the view expressed by the Court in the aforementioned case that 'limitation does not apply to criminal prosecution and it is inappropriate to examine question of delay through the actions of the Government or the prosecution authorities as if they give rise to equities, on the same footing as in a civil matter inter parties. It may be pointed out at the same time that in the instant case there has been no inordinate delay on the part of the State or the prosecution authorities in completing the trial. Initially some time was consumed in holding preliminary investigation and obtaining sanction for prosecution of the co‑accused of the appellants who are public servants. Thereafter the challan was put in the Court of the Special Judge in 1962 who, as mentioned earlier, discharged the accused on 7‑4‑1967. The State then filed a revision petition in the High Court which was allowed by a learned Single Judge on 9‑12‑1969. Leave to appeal was obtained by the appellants on 19‑8‑1970 on the pleas referred to in the beginning o the order. The mere fact that the offences with which the appellants are charged were committed some time in 1957‑58 does not amount to abuse of the process of the Court on which ground alone a Superior Court may quash the proceedings in a criminal case. In the result the appeal is dismissed. The Special Judge entrusted with the case will take all necessary steps to expedite the trial. Appeal dismissed.