P L D 1959 (W (PLP)

(iii) In ease No. 4/2, the allegation is of accepting Rs. 10 as illegal gratification from a gangman under him on the same date. Charge under section 161, P. P. C. had been framed. All the four witnesses for the prosecution have been examined. (iv) In case No. 5/2, the allegation is of accepting Rs. 10 as illegal gratification from Sardara gangman for employing him as gangman. Charge under section 161, P. P. C. was framed on 2nd September, 1953. Six out of nine prosecution witnesses have been examined. (v) In case No. 6/2, the allegation is that in the year 1951 at Sukheke, as a public servant, he accepted Rs. 10 each from Ahmad Din, Inayat and Muhammad Din as illegal gratification for enlisting them as temporary labourers. No charge has yet been framed. Three out of eight prosecution witnesses have been examined.

3. The petitioner was arrested on 4th March, 1953, and was bailed out on 10th March, 1953. The cases were put in the Court of Mr. A. M. Saeed, Additional District Magistrate,. Gujranwala, as Special Judge on 1st July 1953. Charges were framed as stated above in four cases on 2nd and 3rd September 1953. While the cases were pending in that Court, Criminal Law Amendment Act (XXXVII of 4953) came into force on 17th November 1953. By operation of subsection (4) of section 4 of the Act all these cases involving offences under section 161, P. P. C. stood transferred to the Court of Special Judges appoined under the Act and having jurisdiction to try the offences. As a result. the Additional District Magistrate, Gujranwala, ceased to have jurisdiction to try the cases., Cases No. 2/2 and 3/2 came up next before Mr. G. M. Mansoor, Additional District Magistrate, Gujranwala, as Special Judge, on 23rd June, 1954, i.e., after about a year, when 2 witnesses in the first case and one witness in the second was examined. The Court's orders are to be found in the vernacular record. The cases could not be taken up because of absence of counsel for the Central Government on 27th August, 1954, the Court ordered that the cases be sent to Raja Hamid Mukhtar, Special Judge, Lahore, as he was competent to try offences committed by servants of the Central Government. Mr. Hamid Mukhtar sent the cases on 3rd of September 1954 to Mr. Riaz Qureshi Special Judge, Lahore, for trial. The next order on the file is dated 21st March 1956, i.e., after 2 years, when Mr. Riaz Qureshi directed that the cases should go to the Sessions Judge, Gujranwala, as a Special Judge. It took a year for the cases to reach Gujranwala for the next order is dated 2nd March 1957. On 18th March, 1957, Public Prosecutor, Gujranwala, made a request for adjourn ment of the cases to enable the Central Government to appoint a Special Public Prosecutor for the conduct of these cases. There were several adjournments despite an application made by the accused on 4th May, 1957, for quashing the proceedings. The Central Government in the Ministry of Interior had made Notification No. 6/20/55-Police (2), dated 11th April, 1957, appointing Public Prosecutor, Gujranwala, to conduct the prosecu tion of these cases, but it appears that he was not aware of it, as even after 11 th April 1957 several adjournments were obtained from the Court on the ground that orders of Central Government were still awaited. On 3rd October, 1957, the learned Public Prosecutor requested for further adjournment on the ground that he had not yet obtained an order of appointment in each case. Again, there were several adjournments. On 25th January, 1958, adjournment was requested in order to supply copies of statements of witnesses before the police and of the documents to the peti tioner. These took a long time to prepare and these copies were eventually supplied to the petitioner on the 5th April 1958, and the cases adjourned to 5th May, 1958. Requests for further adjournment by the Public Prosecutor still continued. 'This time another adjournment was sought to supply copies of state ments of witnesses recorded by the Additional District Magistrate. Again, there were several adjournments extending over 4 months. It was not until the 18th of September, 1958, that the copies were given to the petitioner and the cases adjourned to 20th November, 1958, on which date statement of the petitioner was recorded and cases adjourned to 12th January, 1959. In the meantime, on 10th December, 1958, the present application for quashing the proceedings was made under section 561-A of the Code of Criminal Procedure to this Court. The cases came up before the learned Special' Judge, Gujranwala, on 12th January, 1959. He made the following order :- "The necessary notification authorising me to hear this case has not since received. To be awaited. The case to come up on 16-3-1959".

4. The Pakistan Criminal Law (Amendment) Act, 1958 (Act XL of 1958) came into force on 23rd September, 1958, which again changed the qualifications of Special Judges who could try these offences. The Central Government has by Notification. No. F. Adm. 15-8/58 (1), dated 25th November 1958, appointed al. Sessions Judges, Additional Sessions Judges and Assistant Session Judges in West Pakistan, who have for a period of not less than. t three years exercised, whether continuously or not, the powers under the Code of Criminal Procedure, of a Sessions Judge, an Additional Sessions Judge or an Assistant Sessions Judge, to be ex-officio Special Judges within their respective Sessions Divisions, for the trial of offences under the Pakistan Criminal Law Amendment Act, 1958. The Sessions Judge, Gujranwala, does not appear to have been aware of this notification for his order shows that he was expecting a notification to be made: y,Not having exercised the powers of a Sessions Judge or an Additional Sessions Judge for three years he is not competent to hear these cases. He did not hear the cases on 12th January 1959 and gave a long adjournment to 16th March 1959 to await a notification to authorise him to hear them. It would take him a long time to qualify for trying these cases. No steps have so far been taken to obtain an order of transfer of the cases to a' Special Judge who may be competent to hear and decide them.

5. In the above circumstances, the learned counsel for the petitioner argues that there has been inordinate delay in the disposal of the cases, that at two stages the cases were shelved for about one year and once for two years, and the trial has not proceeded any further for over five years from the stage to which the cases had reached on 24th October, 1953. He relies on Malik Fazal Karim v. The State (P L D 1957 Lah. 837) ; The Crown v. Piru and another (P L D 1955 Sind 227), Muhammad Tufail v. The State (Criminal Miscellaneous No. 352 of 1957) decided by Rahman, C. J. on 15th April 1957, and Rash Behary v. Corporation of Calcutta (A I R 1926 Cal. 102). 1n the last case the procee dings were quashed, observing that :- "To my mind it is clear that the prosecution has, in the present case, been cherishing an idea that it is at the sweet will of the prosecution to go on with a case or get it adjourned, and the orders of the Court have tended to foster the idea. It must be remembered that the case had been partly gone into and then stood adjourned, for further examination of the complainant and for production of certain papers and also to enable the officers to have the necessary delegation of power under the new Act. It may be presumed that the last mentioned defect was remedied before the application for revival was made. The defence for which the trial is to take place is now more than a year old and he difficulty of an accused person to meet a charge in respect of an offence committed long ago is obvious. If there is an impression any where that proceedings of this nature can be tolerated it is time that such impression should be removed. I am therefore of opinion that the proceedings should be quashed.

6. In Criminal Miscellaneous No. 352 of 1957, the case was put in Court on 23rd December, 1953, and though the learned Special Judge had noted on 6th October, 1955, that sanction for the prosecution was not forthcoming and had released the petitioner under section 249 of the Code of Criminal Procedure without pronouncing an order of conviction or acquittal, the department had taken no steps to grant the sanction till April 1957. It was held by Rahman, C. J., that :- "The petitioner still had the sword of damocles hanging over his head and is suffering unnecessarily because the department has placed him under suspension all along. I am constrained to hold in the circumstances that the prosecution amounts to abuse of process of the Court. If the Department has- not been able to make up its mind even now as to whether they should prosecute him or not, it should be presumed that they have no case on the merits against him. I, therefore, quash the proceedings in this case and discharge the accused petitioner." It may be noticed that in this case sanction for prosecution had not been granted for 4 years so that the case is distinguishable on facts as in the present case sanction had, in fact, been accorded as long ago as 17th April, 1953.

7. In the case Crown v. Piru and another the respondent was challaned on 10th December, 1947, before the Joint Sub-Judge and First Class Magistrate, Naushahro, under section 395/342, P. P. C., which was committed on 21St November, 1947. The case was transferred to the Joint Sub-Judge and First Class Magistrate Naushahro on 10th March, 1948. Haji, his co-accused was challaned on 8th April, 1848. On 15th April, 1948, the case was adjourned as the learned Public Prosecutor was absent. It was then trans ferred to the Court of the Special Magistrate Moro, by 28th April, 1948, but it made no progress there. By 23rd July, 1948, it was transferred to the Resident Magistrate, Nawab Shah. The case remained with him until 17th June, 1950, and was again transferred to the Joint Sub-Judge and First Class Magistrate, Hyderabad. It remained with him from 4th July, 1950 to 24th September, 1953. It was again transferred to the Sub-Divisional Magistrate Nawab Shah by 26th October, 1953, and was still pending with him in March 1954, when the case was brought to the notice of the Chief Court of Sind. The reason for the case not proceeding before the Resident Magistrate. Nawab Shah, mainly was that Haji, who was standing trial along with Piru and was in custody, was not produced from jail although Piru attended all the dates of hearing. On these facts it was held that the adjournments granted by the Resident Magistrate, Nawab Shah, to procure the attendance of the co-accused over a period of two and a half years were against judicial principle. The proceedings in the case were quashed, relying on Rash Behary v. Corporation of Calcutta, Motiram Jaimal v. Emperor (A I R 1943 Sind 10) and Jahangir v. Gangaram (10 S L R 148 at page 158), wherein Hayward, J. C. observed that the granting of frequent and lengthy adjournments resulted in a travesty of the prompt procedure contemplated by the Criminal Procedure Code and that frequent adjournments amounted practically to a denial of justice, Agha Nazarali v. Emperor (A I R 1941 Sind 186 at page 187), wherein Davis, C. J., and Easton, J. said . " * * * * * what the law contemplates is due diligence and impartiality in the prosecu tion of criminal cases. It is not the law that a criminal case should linger long. Indeed the Court must be impartial and it is inconceivable that it would have granted the adjournments it gave to the prosecution to examine its witnesses to the accused to examine their witnesses." Emperor v. Muhammad Ibrahim and others (A I R 1942 Cal. 219 at page 221). In this case Derbyshire, C. J., and Bartley J., laid down that "the policy of criminal law is to bring persons accused to justice as speedily as possible so that if they are found guilty they may be punished and if they are found innocent they may be acquitted and discharged". The adjournments granted are in grave disregard of this policy.

8. Malik Fazal Karim v. The State. In this case, Malik Fazal Karim, Manzur Ilahi and Muhammad Jamil had been under suspension and no progress had been made in their case for five years. It was contended on their behalf that it was a case of abuse of process of Court and they were entitled to ask that the sword of damocles which was hanging over their heads be removed permanently. Muhammad Shafi, J. observed as follows "I most regrettably observe that the whole trial has been turned into a complete mockery. `Justice delayed is justice denied' is an old and surely not an empty maxim and there cannot be a better case than the one now before me to which it can more aptly apply. I think the main purpose for which a criminal trial is held is that the guilty persons should be brought to book soon after the commission of the offence. This is both in the interest of the prosecution as well as in that of the accused. Criminal Procedure Code has laid down an elaborate machinery for the speedy disposal of has-laid cases and it cannot be said that it has done so without sound reasons. In my view, the purpose of the Criminal trial is completely frustrated if long time is permitted to elapse between the commission of the offence, and the trial. Some very serious consequences may well emerge out of it. The accused may be seriously hampered in his defence or the prosecution itself might irreparably suffer therefrom either to its own disadvantage or to the disadvantage of the accused. If, therefore, the trial takes so long a time as it has taken in this case then it is fatal to the case. Particularly when it has made no progress whatsoever." "The perusal of the different orders which have been passed by the learned Magistrate in this case and keeping the case pending for five long years without doing anything substantial certainly go to show that there has been an excessive abuse of process of law and denial of justice, which can, under no circumstances, be condoned. I, consequently, though with great reluctance, accept the three petitions, and order that the proceedings started on the first information report recorded on the 8th of June, 1952, be quashed."

9. The facts of the instant case have close resemblance to the last case mentioned above and the observations made therein have full force. It is extremely regrettable that the trial of the five cases has not advanced any further from the stage at which the cases had reached on 24th October, 1953 or 23rd June 1954. The proceedings dated 28th November 1953 were incompetent and without jurisdiction and have thus to be ignored. After the passing of the Criminal Law Amendment Act XXXVII of 1953, the cases were not heard of thrice for long periods and went from Court to Court but without any progress. The petitioner has attended numerous hearings but the cases have remained undecided. Adjournments for ten months were granted for a counsel to be appointed by the Central Government to conduct the cases, and for another ten months for supplying copies of statements and documents to the petitioner. The rest of the evidence has not so far been recorded and there is no prospect of the cases proceeding forthwith, or concluding in the near future.

10. In the above circumstances, there cannot be the least doubt that the cases have not progressed for over four or five years. The plight of the petitioner can well be understood. These cases were originally registered on 30th September, 1952, and the sword of damocles has been hanging over his head for over six years. The chances of the accused to defend himself after a lapse of so many years must have been seriously affected. If the prosecution does not take care to see that a case against an accused person is proceeded with expeditiously and allows it to linger on inordinately or delays its progress, the fault must lie at its door, whether for non-production of sanction, the witnesses, the co-accused from jail, or by frequent transfers of case from Court to Court, by change of law or by the conduct of the Prosecutor. The intention of the law is that a criminal case A must be expeditiously disposed of without unnecessary delay. Section 344 of the Code of Criminal Procedure, requires the Court to record (1) reasons for every adjournment (2) to consider the reasons for, and (3) the period for which an adjournment is to be granted. The section indicates that adjournments can be made for absence of witnesses or for any other reasonable cause. Any e cause other than the absence of witnesses must be for a cause necessitating or justifying an adjournment on reasonable grounds. What is a reasonable ground is a question of fact in each case. The Court must apply its mind to its reasonableness and should not grant an adjournment mechanically and without good cause. The recording of reasons is as necessary a condition as the reason ableness of the cause for which adjournment is granted. The law also lays emphasis on the reasonableness of the time for which adjournment is granted. The provision has been made deliberat ely to avoid unnecessary delays and adjournments so as to ensure speedy decision. In the present case, the adjournments were given without any reasonable cause, and in fact for causes which did not exist. Adjournments were given for months when a Public Prosecutor had already been appointed for the conduct of the cases. The supply of copies, if it was necessary, could and should have been taken in hand simultaneously and not after a counsel had been nominated and in any case it should not have taken tent months to copy a few statements. The state of affairs discloses utter incompetence and callous disregard of the worry and anxiety of a person who is 'charged with crime. 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. The conduct of these cases by the learned Public Prosecutor reflects a lack of interest in the cases. He did not apply his mind to what was needed and he has sought adjournment after adjournment, which should not have been granted. Would an accused person have been given all these adjournments ? If not, should the prosecution have been shown such an indulgence ? If the prosecution fails persistently without reasonable cause to produce its witnesses, or seeks adjournments unjustifiably, it is the duty of a Court to proceed to judgment expeditiously and without unnecessary delay. Justice delayed is justice denied for the defence of the accused must suffer by lapse of time and the prosecution may also suffer likewise. A fair and speedy trial is the essence and essential of judicial administration in a civilised country. Protracted proceedings as in this case are a mockery of the law and must be deemed to be an abuse of process of Court.

11. Mr. Ejaz Ali, learned counsel for the State, argues that the Court and not the prosecution was at fault for giving so many adjournments because a counsel for the prosecution had been appointed by the Central Government on 11th April 1957 and it was not necessary to obtain arty adjournment for that purpose after that, and so many adjournments were not necessary for supplying copies of statements of the witnesses before the police and the Court and most of the delay could be avoided. The argument tacitly concedes that the fault lay with the prosecution for all the delay. As the adjournments were obtained by the Public Prosecutor, and when no cause for adjournment existed and when the cases disappeared from Court for long period, the prosecution itself is to blame, and not so much the Court. Even now these cases stand adjourned for two months to await a notification, which has already been made.

12. Mr. Ijaz Ali requests that I should make an order transferring the cases to a Special Judge competent to try the cases so that they can be proceeded with and decided. This is a strange request for no application for transfer has been made in spite of the fact that under the notification, dated 25th November 1958, the Sessions Judge, Gujranwala, is not authorised to try such cases. The learned Public Prosecutor was not aware of the notification and it was not brought to his notice. This is a sad state of affairs. It is not for this Court to order a transfer of a case on its own in order to help the prosecution out of a difficult situation, where it has been shown that the prosecution has been responsible for the delay or has been hopelessely incompetent or utterly careless in the conduct of a case.

13. It has also been argued that as charges have been framed against the petitioner in four out of the five cases so that a prima facie case has been made out against the petitioner, the proceedings should not be quashed. It is true that where a charge has been framed, it tray not be possible to quash the proceedings as an abuse of process of Court without reference to the merits of the case. I have gone through the evidence in these cases and I find that the evidence against the petitioner is mainly of disgruntled subordinates or of persons who are in the position of accomplices, whose testimony needs corroboration and no such corroboration is available. A conviction is not likely to result and to let the cases drag on, when there is no likelihood of an early decision, will not further the ends of justice. The protracted trial of these cases shows a shocking state of affairs which is revolting to one's conscience and this has compelled me to go into the facts and interfere on merits. I had indicated in my order dated the 1 I th December 1958 that the trial must be expedited and had issued notice to the State on the 12th January 1959, but no effort has so far been made by the prosecution to do anything to bring about a speedy decision, The proceedings in these cases must, therefore, he held to be an abuse of process of Court and this Court has ample powers to set aside the proceedings in exercise of powers under section 561-A of the Code of Criminal Procedure. I, therefore, order that the proceedings based on the report Exh. P.B/l, dated 30th September 1952, shall be quashed and the petitioner shall stand acquitted in Cases Nos. 2/2, 3/2, 4/2 and 5/2 and discharged in Case No. 6/2 pending against him. K. B. A. Proceedings quashed.