P L D 1963 (W (PLP)

ANWARUL HAQ, J.‑This case has been referred to us for decision, with particular reference to the following two questions: (i) Whether the Government is precluded from restarting criminal proceedings against the petitioner, when such pro ceedings had been stopped on the petitioner fulfilling the liability imposed on him by Government as a condition prece dent for dropping the proceedings in question? and (ii) whether, in the circumstances of the present case, a delay of nearly eight years in completing the investigation and putting the cases in Court does not amount to an abuse of process of the Court, such as would justify quashing the proceedings under section 561‑A of the Criminal Procedure Code.

2. The facts of the case, as summarised in the Order of Reference made by one of us (Anwarul Haq, J.), are as follows. The petitioner, Ghulam Qadir Khan, presented seven petitions under section 561‑A of the Code of Criminal Procedure, praying that proceedings in seven cases pending against him in the Court of the Additional District Magistrate, Multan, be quashed. The cases are under sections 406, 408, 467, 468 and 471‑A of the Pakistan Penal Code, and arise out of first information report No. 8 7, registered on the 6th of June 1953, at Kabirwala Police Station in the Multan District.

3. It was alleged in the F. I. R. that, while holding office as President of Makhdumpur Multipurpose Co‑operative Society during the years 1950 to 1953, the petitioner embezzled large sums of money and also tampered with the records of the Society. The investigation continued for about three years, but the cases were not put in Court. Early in 1956 the Registrar, Co‑operative Societies appointed a Board, consisting of three Class I Officers of the Co‑operative Department, to go through the accounts of the Society and determine the liability of the petitioner. The Board came to the conclusion that the petitioner was liable to pay, to Multan Central Co‑operative Bank Rs. 77,757‑4‑9.

4. This sum was paid by the petitioner in 1958. There were some other outstanding matters also, regarding which arbitration proceedings were started under the Co‑operative Societies Act.

5. It appears that when the Registrar, Co‑operative Societies appointed a Board to examine the accounts and to determine the liability of the petitioner, an understanding was given to the petitioner that if he paid the amount determined by the Board, the criminal proceedings would be dropped, and that it was in pursuance of this understanding and assurance that the petitioner paid the amount in question. This position becomes apparent from copies of various letters and official noting placed on the file. In the first place, there is a letter bearing No. 1058/RA, Lahore, dated the 30/31st of July 1956, from Mr. Riazuddin Ahmad, the then Registrar, Co‑operative Societies, Lahore, to Mr. Muhammad Hussain, Assistant Inspector‑General of Police, C. I. D. (Crime), West Pakistan, stating that the petitioner Mr. Ghulam Qadir Khan Daha has given an undertaking for payment of the assessed money to the Society, and the remaining cases are being referred to arbitration under the orders of Government, and, therefore, further proceedings in the cases may be dropped. Then there is a letter of the 10th of October 1957, namely, D. O. No. 752‑SWLG/57 addressed by Mr. S. Alamgir, who was then Secretary to Government of West Pakistan in the Social Welfare and Local Government Departments, to Mr. M. H. Shah, Registrar, Co‑operative Societies, West Pakistan, saying that "the West Pakistan Government have decided that in the first instance recovery of Rs. 77,757‑4‑9 from Mr. Ghulam Qadir Khan Daha of Khanewal should be effected and thereafter this department will move the Home Department to issue the necessary instructions to withdraw the case". In reply to this letter, Mr. M. H. Shah wrote his D. O. No. 23‑R, on the 5th of March 1958, intimating that as the amount in question had been paid by Mr. Daha, further action as contemplated in Mr. Alamgir's letter of the 10th of October 1957 might be taken.

6. Subsequent to these letters, there is a note recorded on the 18th of March 1958 by Mr. Ali Ahmad, who was then Minister for Co‑operation in the West Pakistan Government, saying that on the 20th of January 1957 the then Chief Minister (the late Dr. Khan Sahib) had ordered that the case against Mr. Daha should be withdrawn only when the amount was recovered, and that as Mr. Daha had now paid the amount of Rs. 77,757‑4‑9, the case was submitted to the Chief Minister to decide and to direct the Home Department to withdraw the prosecution. On the same date, the then Chief Minister, Sardar Abdur Rashid, recorded the following note :‑ "Since the amount due has been paid, the case may be with drawn." This note was marked to the Minister for Co‑operation who sent it for immediate compliance to the Home Secretary to the Government of West Pakistan. This officer expressed the opinion that as the case had not yet been put in Court, so the question of withdrawal did not arise, and perhaps the Chief Minister wanted to drop all proceedings against Mr. Daha because he had paid the entire amount due from him. With these observations the Home Secretary sent the papers to the Inspector‑General, Police, adding that "action may please be taken accordingly and report submitted to Government at an early date". Mr. A. B. Awan, who was then the Inspector- General of Police; forwarded these papers to the A. I. G. (Crime), for "taking action at once". The note of the Inspector‑General; Police is dated the 22nd of March 1958.

7. From the report submitted by the Secretary to Govern ment of West Pakistan, Co‑operation, Labour and Social Welfare Departments, to this Court, it appears that the Inspector‑General of Police represented to Government against stopping the investigation in these cases, and in February 1959, the Government agreed that the investigation may be re‑opened. The Commis sioner, Co‑operative Societies represented to the Government against the re‑opening of the criminal proceedings, emphasising that the petitioner had complied with the conditions laid down by the Government. The Government, however, informed the Commissioner, Co‑operative Societies that the only commitment made by the Department of Co‑operation, Labour and Social Welfare, was that the Home Department will be moved to issue necessary instructions to withdraw the case and that commit ment had been fulfilled, but the Home Department had not agreed.

8. The fresh investigations were completed during the year 1960 and the cases were put in the Court of the Additional District Magistrate, Multan on the 21st of January 1961. Some other persons were cited as co‑accused with the petitioner. One of them, namely, Mr. Saeed Ahmad, Manager of the Multipurposes Society, is reported to have died in the meantime.

9. On behalf of the petitioner two main contentions were raised, namely, (a) that having agreed to drop the criminal proceedings on the condition that the petitioner paid the amount determined by the Board of Co‑operative Officers, the Government had no legal right to restart those proceedings especially when the decision was endorsed by two Chief Ministers, namely, Dr. Khan Sahib and Sardar Abdur Rashid, and (b) that there has been inordinate delay in putting the cases in Court, namely, of nearly eight years, and therefore, trial of these cases would clearly amount to an abuse of the process of the Court, particularly when the Petitioner is seriously handicapped in conducting his defence due to the delay that has taken place as wed as due to the death of the co-accused Saeed Ahmad who was maintaining the accounts of Society.

10. As regards the first contention, which is embodied in the first question referred to us, suffice it to say that it was conceded by the learned counsel for the petitioner that there can be no estoppel in criminal matters, as estopple is a rule of civil action. The learned counsel for the State, Mr. Dilawar Mahmood, also referred us to several authorities to the effect that any contract to stifle a criminal prosecution would be against public policy, and, therefore, unlawful. He submitted that for this reason as well the proceedings against the petitioner should not be quashed, as such an order would amount to giving effect to an unlawful Contract between the petitioner and the Government. See Kamini Kumar Basu and others v. Birendra Nath Basu and another (AIR 1930 P C 100), Sudhindra Kumar Ray Chaudhuri v. Ganesh Chandra Ganguli (I L R 1 Cal. 241), Lal Mia v. Abdul Gani and others (P L D 1953 Dacca 149), Probodh Chandra Barman v. Messrs Abdul Rahman Abdul Gani and others (P L D 1960 Dacca 983) and Ghulam Mujtaba v. Allah Bachaya (P L D 1961 13 T 27).

11. We are of the view that as there is no estoppel in criminal matters, there is no question of the Government being estopped or precluded from restarting the present cases against the petitioner simply for the reason that at one stage the Government had agreed to drop these proceedings if the petitioner paid the amount determined by a Board of Co‑operative Officers in lieu of his criminal liability. Purely from the legal point of view, therefore, the Government is competent to restart the prosecution of the petitioner.

12. The more important question, however, is whether in view of the circumstances of the case, the cases now instituted against the petitioner do not amount to an abuse of the process of the Court. On behalf of the petitioner it is pointed out that the offences are alleged to have been committed in the years 1951, 1952 and 1953, and the first information report dates back to the 6th of June 1953, that the entire liability of the petitioner was thoroughly and exhaustively investigated by a Board of Class I Co‑operative Officers, and that the petitioner has met in full the liability so determined. It is added that due to lapse of years, it has become practically impossible for the petitioner to conduct his defence effectively and more so especially for the reason that one of the co‑accused persons, namely, Saeed Ahmad, who was Manager of the Multipurposes Co‑operative Society in question has died in the meantime and that it was this co‑accused who was primarily handling the accounts of the society and was in a position to throw light on the manner in which the accounts were kept and the moneys of the Society were utilized. Mr. Ijaz Hussain Batalvi, the learned counsel for the petitioner, has strenuously contended that in these circumstances, the prosecution of the petitioner, instituted after eight years of the registration of the case, is highly oppressive and clearly amounts to an abuse of the process of the Court.

13. On behalf of the State, it is contended by Mr. Dilawar Mahmood, that the cases against the petitioner are based on documentary evidence, that the amount involved is much more than that paid by the petitioner in pursuance of the decision of the Board of Co‑operative Officers, and that in any case the delay that has occurred in these cases is not during the trial in Court but before the cases were instituted and that for this reason there can be no question of an abuse of the process of the Court.

14. According to Wharton's Law Lexicon, the term "process of the Court" is largely taken for all the proceedings in any action or prosecution, real or personal, civil or criminal, from the beginning to the end ; strictly, the summons by which one is cited into a Court, because it is the beginning or principal part thereof, by which the rest is directed. In in re : Llewelyn Evans (A I R 1926 Bom. 551), it was observed that the term "process" is a general word meaning in fact anything done by the Court. The same definition was adopted in Assistant Government Advocate v. Upendra Nath Mukerji (A I R 1931 Pat. 81).

15. Now the question is what would constitute an abuse of the process of the Court, as contemplated by section 561‑A of the Code of Criminal Procedure. It is difficult to enumerate exhaus tively the types of cases or proceedings which may constitute an abuse of the process of the Court, but, broadly speaking, where the proceedings are wanting in bona fides, or are frivolous, oppressive or prolonged unnecessarily or intentionally or involve Mitigation over a question which has already been decided against a party starting the proceedings, it may be said that such proceedings constitute an abuse of the process of the Court, to the extent that they invoke the powers of the Court and require acts to be done by the Court for purposes other than securing the ends of justice. In an these cases the impli cation is that the agency of the Court is being employed for a purpose other than the one for which the Court exists, namely, the administration of justice according to law.

16. The several authorities cited by the learned counsel on both sides appear to fall in the broad categories indicated above. For instance in Ladha Shah v. Zaman Ali (A I R 1925 Lah. 289(2)), Gokul Prasad and another v. Debi Prasad (A I R 1925 All. 311(2)), Raghunath Puri and others v. Emperor (A I R 1932 Pat. 72) and Zafar Niazi v. Riaz‑ud‑Din (P L D 1958 Lah. 738), the High Court interfered on the ground that the evidence did not disclose any criminal case against the petitioner. In Abdul Wall v. Emperor (A I R 1933 Oudh 387) and Din Dayal Shrivastava v. The State of Vindhya Pradesh (A I R 1953 Vindhya Pradesh 35), it was held that the High Court would interfere if it appears that the trial is a mockery. Harkishan Lal v. Khushabi Ram (A I R 1926 Lah. 213) was a case in which it was observed that a complainant who allows a long period to elapse before resurrecting a case under section 408, I. P. C., cannot possibly be allowed to re‑agitate the matter on the ground that his feelings have been outraged by the action taken by the accused, and that as a sort of retaliation he should be so allowed. The learned Judge observed : "It is obviously not in the interest of anybody concerned nor the administration of justice that criminal cases of this sort should be buried for two years or more and then brought to life again either in order to extract blackmail from the other side or to satisfy private feelings of revenge."

17. The last category of cases deals with the question of delay in the disposal of criminal trials. In Rash Behary Karury v. Corporation of Calcutta (A I R 1926 Cal. 102), their Lordships expressed the view that "the offence for which the trial is to take place is now more than a year old and the difficulty of an accused person to meet a charge in respect of an offence committed long ago is obvious. If there is an impression anywhere that pro ceedings of this nature can be tolerated, it is time that such impression should be removed." It is true that since 1926 conditions have changed and the Courts have been obliged to accept a somewhat longer period as inevitable for the disposal of criminal cases but even then inordinate delays have been consistently frowned upon. In Fazal Karim v. The State (P L D 1957 Lah. 837), a delay of five years in the disposal of a criminal case was con sidered to be an excessive abuse of the process of the Court and denial of justice and for that reason the proceedings were quashed. The learned Judge observed that "justice delayed is justice denied is an, old and not an empty maxim". In Muhammad Husain v. The State (P L D 1959 Lah. 322), the learned Judge quashed the proceedings on account of seven years' delay in the finalization of the case, observing that "the intention of the law is that a criminal case must be expeditiously disposed of without unnecessary delay. It is a mockery of law to allow criminal cases to proceed for four or five years without any progress. It is revolting to the conscience of a Judge under any system of law that a criminal case should take so long and still not be decided. * * * * Justice delayed is justice denied, for the defence of the accused must suffer by lapse of time and the prosecution may also suffer likewise". Again in The State v. Qamar‑uz -Zaman (P L D 1960 Lah. 1199), the proceedings had been quashed on account of delay that had taken place in obtaining sanction for the prosecution of the accused, who was a public servant. The Government wanted to restart prosecution after obtaining fresh sanction. The learned Judges of the Division Bench held that although quashing of proceedings amounted only to a discharge, yet the circumstances of the case showed that it was certainly not the intention of the Judge that fresh proceedings for the same offence should be brought against the accused person. They held that to allow fresh proceedings to be instituted would not only nullify the High Court's order quashing the proceedings but would constitute a glaring abuse of process of law.

18. It was contended by Mr. Dilawar Mahmood, the learned counsel for the State, that most of the authorities in which delay in the disposal of criminal cases has been held to constitute an abuse of the process of the Court, dealt with cases where the delay had taken place during the Court proceedings and not during investigations preceding the commencement of the trial. He argued that there was a distinction between delay in the investigation and delay during the trial, and that it was the latter kind of delay which attracted the provisions of section 561‑A of the Code of Criminal Procedure. As an authority for this proposition, he referred us to Muhammad Rafi v. State (P L D 1910 Lah. 90) which is a decision by our learned brother Abdul Hamid J, sitting as a single Judge. The relevant observations on which special reliance was placed by the learned counsel for the State may be reproduced below: "Prolongation of proceedings inside the Court over a period of four or five years would no doubt constitute such an abuse, if prolongation of proceedings is occasioned by unneces sary adjournments granted by the Court, on account of which the accused remains under harassment for long periods. Such unnecessary adjournments do constitute abuse of process of Court. But a delay in instituting proceedings for want of legal sanction, or for want of completion of investigation appears to stand on a different footing. If delays of this type are allowed to bar prosecution, law of limitation will stand projected in criminal proceedings. High Courts, by their own authority, would be placing time‑limits of undefined periods upon the prosecution of criminal offences. "It is obvious that Law of Limitation is not known to criminal jurisprudence and it is necessary that criminal pro ceedings should be outside that law, otherwise the accused will be able in many cases to earn exemption from prosecution by placing secretly obstacles in the way of investigation and thereby preventing it from completion with him reasonable time. It is true that accused should be brought to book as early as possible and the sword of prosecution should not be allowed to remain hanging over his head for unduly long periods. But if for any good reason a delay of a long period has intervened between the commission of the offence and the institution of the proceedings, that delay should not always be allowed to operate as a bar against prosecution. If it is allowed to so operate, it would amount to subjecting criminal prosecution to Law of Limitation for which there is no warrant in law." After making the observations just cited, the learned Single Judge proceeded to say that in the cases before him the accused had not been, before Criminal Court for more than two months when they applied for quashing the proceedings and that there had not been a single unnecessary adjournment during the trial, and, therefore, he was not prepared to consider the long delay of four or five years between the commission of the offence and the institution of the proceedings as an abuse of the process of the Court, for by doing so, he would be applying Law of Limitation to criminal matters, for which there was no authority.

19. We are in respectful agreement with our learned brother that Law of Limitation is not applicable in the matter of criminal trials, and, therefore, it cannot be laid down as a rule that the proceedings should be quashed if they are delayed beyond a certain period either at the investigation stage or during the trial. We observe, however, that the learned Judge did not go as far as Mr. Dilawar Mahmood thinks he did, in ruling out of consideration any delay that might occur between the commission of the offence and the institution of the pro ceedings. The words used by the learned Judge are "But if for any good reason a delay, of a long period has intervened between the commission of the offence and the institution of the proceedings, that delay should not always be allowed to operate as a bar against prosecution." It would be seen the 40 that, in the first place, the learned Judge has not prescribed any absolute rule on the point, and secondly he is contemplating that the delay which has occurred during the investigation stage is for a good reason. In other words, even in the view of his Lordship, if the delay is not for a good reason; the proceedings might constitute an abuse of the process of the Court. Finally it seems to us that our learned brother was influenced by the fact that delay during the investigation might be caused by an accused person himself, if he knows that such delay would ultimately benefit him by making out a Justification for the quashing of the proceedings.

20. In our view, there does not appear to be any sound reason for making a distinction between the delay which might occur during the investigation stage preceding the institution of proceedings in Court, and the' delay that might occur during the conduct of the proceedings in Court. The effect in both cases is the same, namely, that justice is delayed, and the accused, and in some cases possibly the prosecution may be seriously prejudiced by the long delay occurring between the commission of the offence and the conclusion of the trial. The delay in both cases if unjustified, will constitute unnecessary harassment of the subject, by keeping the sword of prosecution hanging over the head of the accused for a long time. The proceedings must, therefore, be regarded as oppressive in ‑either case and no calculated to secure the ends of justice. In both cases it is the process of the Court which is invoked, and therefore, if there is any abuse of the process of the Court. It is however that mere delay by itself is not sufficient to come to a finding that there is an abuse of the process of the Court. If there is good reason for delay in the investigation stage by reason of say the com plexity of the case, the magnitude of the evidence tote collected, or disappearance of the accused persons it is clear that such a delay will not constitute a good reason for quashing the proceedings. Similar considerations would apply to the delay that might occur in the disposal of the case after it is instituted in Court. If there are no unnecessary adjournments by the Court, nor is the delay occasioned by undesirable tactics on the part of the prosecution but, on the other hand, it is due to some action on the part of the accused person or due to the very nature of the case itself, it is clear that such a delay would not be considered as amounting to an abuse of the process of the Court. In other words, we think that the circumstances connected with the delay in the disposal of the case will have to be examined in each case before a finding can be arrived at as to whether the delay constitutes an abuse of the process of the Court or not, and no valid distinction can be made in the delay that occurs during the investigation stage or that occurs during the trial. It is clear that if the delay, whether it be in the investigation stage or during the trial, is occasioned by the conduct of the accused person himself, such conduct would disentitle him to any relief under section 561‑A of the Code of Criminal Procedure.

21. Coming to the present case, we have already stated that the cases were registered in 1953, and that by March 1958, petitioner had fulfilled the liability imposed upon him by the Government as a condition precedent for dropping the criminal proceedings. This is evident from the note recorded on the 18th of March 1958, by the then Minister for Co‑operation. Nearly three years were allowed to elapse after March 1958, before the cases were instituted in Court on the 21st of January 1961. Even if the delay up to March 1958 is explained by a genuine desire of the parties to come to a monetary settlement, we are still bound to hold that the delay that occurred from March 1958 to January 1961 was entirely inexcusable in so far as the prosecution is concerned, and for which the petitioner is not to blame at all. We also find that this is a case where the defence of the petitioner stands seriously prejudiced due to the lapse of time that has occurred for the benefit of the pro secution, during which time one of the co‑accused, namely, Saeed Ahmad, who was the Manager of the Multipurposes Co‑operative Society in question, and who was responsible for maintaining the accounts, has died. Finally, the position of the petitioner has been prejudiced further by the fact that he has already paid a sum of Rs. 77,757‑4‑9 to the Government which he was not likely to have paid if the prosecution had been launched expeditiously after the registration of the cases. In view of all these circumstances it seems to us that the institution of criminal proceedings in Court, after nearly eight years of the registration of the cases, consti tutes a clear abuse of the process of the Court, and this Court will be failing in its duty if it did not intervene to stop this abuse. We would, accordingly, accept these petitions and quash the proceedings in the seven cases pending against the petitioner in the Court of the Additional District Magistrate, Multan. K. B. A. Petition accepted.