P L D 1967 Dacca 484 (PLP)

BAQUER, J.‑This revision arises out of a petition under section 561‑A of the Code of Criminal Procedure for quashing of G. R. Case No. 36 of 1964 now pending in the Court of the Sub‑Divisional Magistrate (North), Dacca. The short facts just necessary to understand the background are that on January 21, 1964, during the days of civil disturbance the four petitioners were going to Savar in cars with a view to doing what best they could to stop the disturbance. The four petitioners were in two cars and there was a jeep following them. On the jeep were the two accused Nurul Islam and Safiul Islam. As they were proceeding to Savar, the Governor's car was returning from Savar and crossed them. From the jeep a bundle of pamphlets was thrown at the Governor's car which struck against the window pane of that car. The Deputy Commissioner of Dacca who was in the party of the Governor arrested the occupants of the jeep, namely, the two accused and recovered from tire jeep in which they were traveling unauthorised pamphlets entitled "Purba Pakistan Rukhiya Darao" which they were alleged to have been distributing. Thereafter the General Diary as given in Annexure `A' and the F. I. R. as given in Annexure `B' and the charge sheet as given in Annexure `C' and the accusation as given in Annexure `D' of the petition followed. The grievance made is or the circumstances alleged in justification of the quashment are that on those facts there could be no case against the petitioners either for distributing the unauthorised pamphlets or for the offence of throwing of the bundle of the pamphlets on the Governor's car. It has been urged that there is no nexus or connection between the occupants of the jeep and the petitioners and that the G. D., the F. I. R., and the charge‑sheet also do not indicate that the petitioners' could be connected in any way with the offences, if any, and that in the circumstances of the case, it is an abuse of the process of the Court to allow the proceedings to continue and that the accusation framed should be quashed to secure the ends of justice. Mr. S. R. Pal, the learned Advocate appearing for the petitioners has further contended that the aim of the prosecution is only harassment of the petitioners who belong to a camp opposed to the ruling party and that the course pursued by the prosecution is not intended to secure the ends of justice and is really an abuse of process of Court. He has relied on the following lines of the observations of Cornelius, C. J., in the decision in M. S. Khawaja v. State (P L D 1965 5 C 287) "On the other hand, it is possible to agree with the observation that the circumstances of each case, in which the inherent power is invoked, must be examined with case to determine whether the judicial proceeding is really intended to "secure the ends of justice" or is really "an abuse of the process of the Court." To quash a judicial proceeding in order to "secure the ends of justice" would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an "abuse", it should be necessary to 'see in the proceeding, a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue, and similar perverse results." The learned Advocate‑General in his turn also relied on the self?same lines. In the light of the latter part of the observation the learned Advocate‑General has submitted that quashing of a judicial proceeding can be allowed only on the basis of a finding that if it is permitted to continue, that proceeding would defeat the ends of justice and to find as above it would be necessary to see in the proceeding a perversion. In substance the learned Advocate?-General wants to say that the lines instead of facilitating quashing has put very stiff hurdles in its way and that in fact the Supreme Court did not grant any quashing in that case. The abuse, it appears in the light of that decision, must be such as to lead to perversion of the very purpose of the law. That case really turns upon the question as to how far a superior Court acting under its inherent power to prevent abuse of process or otherwise to secure the ends of justice would deem it appropriate to act so to place an alleged offence outside the operation of criminal law on the grounds such as that of delay. In our present case the question mainly is as to whether on the allegations as made there is any case against the petitioners. Qaushing would be justified if the prosecution allegations even when accepted as true would not establish any offence against the petitioners and where an offence is established if the allegations are believed but there is no evidence at all in support of the allegations. At the present stage we cannot say that there is no evidence in support of the allegations because the evidence is yet to come nor can we say from the nature of the allegations as set out that they do not establish any offence at all. That offence has been committed has not been denied. What has been denied is the connection of the petitioners with the offence. Examining the records for ourselves, we find that the allegations if believed make out some offence and further that the allegations are not such that there cannot even be an inference of the guilt of the petitioners therefrom. The only question is that of connection of the petitioners with the offence. The allegations prima facie make out offences of the nature of infringement of the Press and Publication Ordinance, 1960 and sections 336 and 352 of the Pakistan Penal Code. In terms of the petition itself there is some case against accused Nurul Islam and Safiul Islam and the question is whether there is such case against the four petitioners also. From the materials on record, we find that at the very inception there is mention of the petitioners in the G. D. entry for whatever it is worth. At the bottom of the G. D. entry as given in Annexure `A' the following lines occur: "Examined the accused. They stated that since 15‑1‑64, they are working as workers of "Danga Pratirodh Committee" of which Sk. Muzibur Rahman is Convenor, Shah Azizur Rahman, Controller, Serajuddin, Reporter of Dawn, Shahidullah Kaisar, Assistant Editor of Sanbad and Ali Aksad of Press Club are Secretaries. The office is at 33, Top Khana Road Dacca. The arrested persons denied to have knowledge from which press these pamphlets have been published. They stated that they found these in the Jeep and distributed according to suit (sic) will. From this it appeared to me that they are concealing the truth." Unfortunately the G. D. entry as quoted in the body of the petition omits those lines. Here there is the nucleus of the case against the petitioners. Mr. Pal has contended that those lines are statements to the police and as such not admissible. How far that is admissible is a different question but the germs of the case against tae petitioners arc found there. The F. I. R. also speaks of the three cars being in one company. The relevant lines of the F. I. R. are:‑ "I. S. I. F. Haque, O. C. Savar P. S. do hereby lodge ezher myself being the complaint to the effect that on 21‑1‑64, when the Governor of East Pakistan with the Deputy Commissioner, Dacca and other offence were returning from Savar accused Nurul Islam s/o Sekandar Gazi of Dhaddar. P. S. Hajiganj, District Comilla at present of 22/5 Santinagar, Dacca accused. Safiul Islam s/o L. Neamuddin Ahmed of Baliakanda, P. S. Debhata, District Khulna at present of 33 Topekhana Road, Dacca preceded by 2 cars carrying Messrs S. K. Mujibur Rahman, Shah Azizur Rahman, Advocate, Shamsul Alam, Advocate and some other persons in one company was proceeding in the opposite direction at a high speed. On the road a bundle of rolled Bengali pamphlets with headline PURBA PAKISTAN RUKHIYA DARAO without the name of the Printing Press was thrown at the Governor's car which hit the glass pane of the car. The Deputy Commissioner, Dacca with police in 2 jeep chased the party and intercepted them at the point where the road from Savar P. S. meets the Aricha Road. On search it was found that these 2 accused persons were in a jeep carrying large quantity of above‑mentioned unauthorised papers. They belong to the party of Mr. Sk. Mujibar Rahman, Mr. Shah Azizur Rahman and others who were going together towards Savar." The F. I. R. itself speaks of the three cars being in one company and it has been alleged that the two accused persons in the jeep belonged to the party of Mr. Sheikh Mujibar Rahman, Mr. Shah Azizur Rahman and others who were going together towards Savar. The charge‑sheet also states that a bundle of rolled pamphlets was thrown rashly at the Governor's car endangering the safety of lire which hit the glass pane of the car from Jeep No. EBA 3383 in which accused persons namely the two accused persons were on board and proceeding towards Savar following the two cars in which accused Nos. 1 and 3 of column No. 2 were on board. The Deputy Commissioner of Dacca chased the party and interrupted at the point where Savar road meets Aricha road and on search some unauthorised pamphlets were found in the jeep belonging to the party with head note "Purba Pakistan Rukhiya Darao" without the name of the Printing Press. During investigation the jeep belonging to Mr. Tajuddin Ahmed was seized and his driver Mansur Ali was arrested. Mr. Tajuddin Ahmed lent his jeep for carrying and distributing these unauthorised pamphlets. The charge‑sheet Annexure 'C' goes on state:‑ "During investigation a prima facie charge under section 55(1) read with section 55 (2) of the Press and Publication Ordinance, 1960 read with section 34, P. P. C. against all the accused persons named in columns 2 and 3 and separate charge under section 326/352, P. P. C. against accused persons named in column 3 having been well proved I submit C. S. No. 14 dated 26‑1‑64, under section 55 (1) (2) of the Press and Publication Ordinance, 1960 read with section 109, P. P. C., 336/352/34, P. P. C. against them for their trial in Court. ????? ???????(Sd.) F. Haq, S. I. O. C. Savar P. S. ?????????? ???????????????????????????????????????????????????????????????????????????????????? 16‑3‑64." The date 26‑1‑64 as given in the quotation above from the charge sheet is apparently wrong which has led to Mr. Pal arguing that there was another charge‑sheet for which we do not find any evidence on record. What is stated here is that "he submits" and therefore this is the only charge‑sheet and it is the charge?-sheet No. 14 dated 16‑3‑64 which has been wrongly dated on the body of the charge‑sheet as 26‑1‑

64. The accusation also shows that the charge is for distribution of unauthorised news sheet and for offences under sections 336 and 352 of the Pakistan Penal Code read with section 34 of the Penal Code. In the face of the records as above we cannot say that there is no case at all against the petitioners though it may be slender at this stage. It will have to be seen in evidence whether the case is actually made‑out or not and that is a. matter which is to be considered by the trial Court. In the circumstances stated above we hold that it is not a fit case for quashing. We refrain from expressing any opinion with regard to the merits of the case. The Rule is, therefore, discharged. Let the records of this case be sent down expeditiously. ABDUS SUBHAN CHOUDHURI, J.‑I agree. K. B. A. Rule discharged.