1986 P Cr (PLP)

‑‑‑S. 439‑‑Justice delayed, justice denied‑‑Legal system prevalent in country acknowledging speedy ‑and expeditious justice in criminal trial so as to create lasting impact on culprits for their misdeed and crime and to ensure safeguard and security against crime to society‑‑Maxim 'justice delayed, justice denied was coined with this spirit in law‑ Essence of time by itself, though not an essential ingredient of administration of justice, yet at same time; importance of essence of time in criminal matters could not be ignored‑‑Each case was to be decided in light of its own facts and consensus was that in our society and system of law, time .was really an essence of dispensation of justice‑ But view that time was essence for competency of criminal prosecution, held, could not be accepted as of universal application as limitation did not apply to criminal prosecution‑‑At the same time inordinate‑ delay, devoid of reasonable cause, resting on disinterest and inaptitude demonstrated by prosecution could not be lightly ignored. Tariq Hussain and others' case P L D 1986 Shariat Court (AJ&K) 119; Malik Fazal Karim's case P L D 1957.Lah. 837, Abdul Haq s case PLD 1964 Lah. 246 and M.S. Khawaja's case P L D 1965 SC 287ref. Raja Lehrasap Khan for Petitioner. M. Nisar Mirza, A.A.‑G. for the State. Date of institution: .2nd April, 1986. The petition raises an important but anomalous question of jurisdiction (relating to forum of trial) in presence of counter‑cases arising out of the same occurrence.

2. Cross‑criminal cases arising out of one incident are instituted in two different. Courts. The case in which Qurban Hussain and others, are accused, is being tried by Tehsil Criminal Court, by virtue provisions of Islamic Penal Laws Act whereas the counter‑case. State v. Manzoor Hussain and others is tried in, the Court of Magistrate 1st Class. Qurban Hussain complainant has moved this petition for transfer of the case from the Court of Magistrate 1st Class to Tehsil Criminal Court, so that cross‑cases arising out of a common incident, are disposed of, though separately but by one Court.

3. The Code of Criminal Procedure contains no express provisions relating to cross‑criminal cases arising out of the same occurrence. To avoid conflicting opinion leading to disastrous results the consensus is that in fairness to the contending parties rind interest of justice, it is desirable that cross‑cases emanating from the same occurrence, be tried simultaneously by one Court and disposed of, though through separate judgment but at one time. This rule, by practice, has attained the status of law. It is in the light of this position that present petition is addressed for transfer of the case comprising offences under sections 147, 198, 149 and 34.1, A.P.C.

4. In Tariq Hussain and others' case P L D 19136 Sh. C. (AJ&K) 119, cross‑cases arising out of a same occurrence, were directed to be tried by one Court despite the fact that these cases, in view of quantum of punishment, were pending in different Courts. The sole consideration of simultaneous trials of cross‑cases by one Court was that the trials of cross‑cases at different forums may not result in conflicting judgments, leading to disastrous results. In present case, the patent difficulty is that one case in which Qurban Hussain is among the accused, is being tried by Tehsil Criminal Court, constituted under he Islamic Penal Laws Act, 1974, whereas the present case having nothing to do with the Islamic Penal Laws Act, is being tried by Additional Sub‑Judge, Magistrate 1st Class. It is an accepted proposition that counter‑cases under the Islamic Penal Laws Act cannot be transferred to the Court of Magistrate as section 23(1)(a) of the Islamic Penal Laws Act clearly bars jurisdiction of the Magistrate. The answer to the proposition, therefore, appears to be that the case constituting offences under the Penal Code may be transferred to the Tehsil Criminal Court.

5. The Islamic Penal Laws Act was enforced with effect from September o, 1974. Section 23(1) of the Act postulates that notwithstanding the Criminal Procedure Code or any other 1&w for the time being in force, the offences described under the Act shall exclusively be tried by the District Criminal Court or a person or persons so authorised by the Government. The language used in the section clearly reflects that all offences covered by the provisions of the Islamic Penal Laws Act are exclusively triable by the District Criminal Court and in view of the subsequent amendment, by the Tehsil Criminal Court The areas of jurisdiction of District and Tehsil Criminal Courts are further determined by amendment in the schedule containing punishment for various offences. Subsection (1)(a) of section 23 further provided that if several acts committed in the same transaction, constituted an offence under the Act and said acts also constituted offence under other laws, notwithstanding the provisions of other laws, the offences shall be tried by a Court constituted under this' Act. In present case, Qurban Hussain, complainant, Sahib Dad, his, brother and Mst. Karim Bibi, were shown to have received injuries at the hands of accused persons Section 14 of the Act defines `hurt' as:‑ "Whosoever causes bodily pain, disease or infirmity to any person, is said to cause hurt." Section 15 provides punishment for voluntarily causing hurt. Ordinarily, this case was triable by Tehsil Criminal Court and not by a Magistrate. The counter case was also challaned in various offences under the Penal Code not under the Islamic Penal Laws Act. In counter‑case the trial Magistrate reported to the District Magistrate on June 8, 1983 for tithe transfer of it to Tehsil Criminal Court. The report was made keeping in view presence of injuries inflicted to the complainant party. The District Magistrate, on acceptance of the, report, made a reference to this Court on December, 22, 1983. On going through material particulars of the occurrence, particularly presence of injuries inflicted on the complainant party; the charge was modified under section 15, Islamic Penal Laws Act and case was sent for trial to Tehsil Criminal. Court, on February 21, 19134. This development; obviously, gave rise to present situation. Ordinarily, the trial Magistrate and District Magistrate should have also made an identical reference to this Court, in the present case as this case also stood on the same footing tilt it was ignored for unknown reasons. The obvious result is that cross‑cases are being tried at different forums. A proper legal answer to the proposition is that the charge in the present case may also be converted to one under section. 15 Islamic Penal. Laws Act and the case should be sent to Tehsil Criminal Court. But before doing that, I feel satisfied to resolve the proposition in both the cases in exercise of inherent powers under section 56‑1‑A, Cr.P.C. by quashing the proceedings in both cases.

6. The chequered history of these cases is that the occurrence took place on October 7, 1975 at noon time when both parties received injuries. The manner of incident: in counter F.I.Rs. was altogether conflicting but the time, place and presence of parties in the incident is uncontroverted. According to the F.I.R. made by Qurban Hussain, the present petitioner, he was not on good terms with Gulab Din, an accused in the counter‑case, on account of civil litigation between them. Gulab Din wanted him to withdraw his suit but this was not accepted to the petitioner Muhammad Boota, nephew of the petitioner, on the day of incident, it was ascribed, drove his cattle to village pond where accused party already present, by giving threats, directed him to take back his cattle. Muhammad Boota apprised of the situation to the petitioner, Sahib Dad, his brother, and Mst Karim Bibi, sister‑in- law, who were sent to village pond to enquire, into the matter. The parties exchanged altercation resulting in abuses and infliction of injury to Mst. Karim Bibi with hatchet at the hand of Manzoor Hussain, accused. The complainant and his 'companions left for police station to make report but they were again waylaid by the accused party in village Jurral near Chhabrian Gujran. Qurban Hussain and Sahib Dad also received injuries in the second encounter. The counter F.I.R. made by Makhtoob Hussain gives altogether different description of the incident. According to the complainant in the counter‑case, Manzoor Hussain went alongwith his cattle for grazing and to look after his crop in Dhoke Sar, village Bhalyala he saw that the cattle of Qurban Hussain and Sahib Dad had trespassed in his land and had damaged the crop. He drove the cattle out of the crop and made complaint to accused persons who ink retaliation, attacked Manzoor Hussain and caused head injuries with hatchet: At this moment, other accused persons also arrived, armed with sticks and hatchets and contributed more injuries to Manzoor Hussain and dispersed from the scene. Muhammad Rashid and Sabir Hussain of the complainant party while going home; from village Samwal Sharif, were also attacked on their way home, by accused party: They were also shown to have received injuries in that incident. The police challaned both parties. In present case, prosecution evidence was closed on January 5; 1977 and accused were examined under section 342, Cr.P.C. on August 8,. 1978 when the case was adjourned for defence evidence: Since then, no progress is shown to have been made in the trial, on account of transfer of the case from one Magistrate to another, in addition to absence of some of the accused and transfer of counter‑case. The counter‑case is also sharing the same fate. During last 10 years the trial has covered half of the distance as the prosecution C evidence is yet to be concluded. The aforesaid state of protracted trial reflects that there is .no hope of conclusion of the proceedings in the near future. The nature of accusation in cross‑cases, the number and nature of injuries suffered by the parties and gruesome torture sustained by continuous attendance during the trial over 10 years, lead to an inference that further exercise shall be nothing but burdensome, an embarrassment and harass to parties as now least chances of conviction are visible. The position in both the cases, even otherwise, is balanced. In this state of affairs, Qurban Hussain and Manzoor Hussain, both present in the Court, equally agreed that the proceedings in both the cases may be quashed, to put an end to their misery.

7. The legal system prevalent in the country acknowledges speedy and expeditious justice 1n criminal trials. This is so as to create lasting impact on culprits for their misdeed, and crime and to ensure safeguard and security against crime to the society. It is in view of this spirit of law that maxim, 'justice delayed, justice denied was coined. It is accepted that essence of time by itself is not an essential ingredient of administration of justice but at the same time, the importance of essence of time in criminal matter cannot be ignored. It is‑true that each case is to be decided in the light of its own facts but the consensus is that in our society and system of law, time is really an assence of dispensation of justice. This view finds support from Malik Fazal Karim's case PLD 1957 Lah.

837. In that case proceedings commenced in June, 1952 and remained incomplete till September, 1957, i.e. for a period of 5 years and 3. months, were quashed in exercise of powers under section 561‑A, Cr.P.C. Mr. Justice Muhammad Shafi, observed that criminal case pending for five years, without any substantial progress, was an abuse of process of law and denial of justice, In Abdul Haq's case PLD 1964 Lah. 246, criminal proceedings containing charge of embezzlement of amount, not having been completed during 11 years, were quashed. It was held that law required a criminal trial to be concluded without any inordinate delay. That case was considered as an eminent one in which delay in its disposal amounted to grave abuse of process of law, thus, the proceedings were quashed. I fully subscribe to the view recorded by Mr: Justice A.R. Cornelius, C.J. (as he then was) in M.S. Khawaja's case P L D 1965 SC 287 and hold that the view that g time is of the essence for the competency of criminal prosecution. cannot be accepted as of universal application as limitation does not apply to criminal prosecution. But at the same time, inordinate delay, devoid of reasonable cause, resting on disinterest and inaptitude demonstrated by prosecution, cannot be lightly ignored. In other words, criminal prosecution cannot be allowed to continue for years together, without accomplishment of intended object. The present case is one of such instances which warrants an end forthwith, in exercise of inherent powers.

9. In view of the position stated above, it is deemed in the interest of justice to quash criminal proceedings in both cases, namely, State v. Manzoor Hussain and State v. Qurban Hussain, pending before the Additional Tehsil Criminal Court and Additional Sub‑Judge, Magistrate 1st Class, Mirpur. The proceedings are therefore, ordered to be quashed. M.Y.H. Proceeding quashed.