P L D 1963 (W (PLP)

This judgment will dispose of three Criminal References bearing Nos. 276, 277 and 278 of 1962. These three References arise out of the inspection note of the Senior Judge Mr. Justice Inamullah after inspecting the Sessions and the Subordinate Courts in the Sukkur Sessions Division a few months ago. His Lordship in the course of his inspection found that there had been inordinate delays in these three cases. There were a number of dates of hearing on which no progress whatsoever had been made and the matters were adjourned to a future date. Accordingly, his Lordship directed that the R & P in each of these cases should be called for to this High Court, notices be issued to the respective parties concerned and the proceedings quashed as in each case it appeared that there was an abuse of the process of the law.

2. Thus, these three matters came up for hearing in Court today and I have heard Mr. Murtaza Husain Shah, Advocate appearing on behalf of the State and Mr. Mazhar Ali, Advocate appearing on behalf of Mazhar Ali, respondent No. 6 in Criminal Reference No. 276/ 1962.

3. In the first of these three criminal references namely Criminal Reference No. 276/1962 the facts are that on 28‑3‑1961 Sub‑Inspector Gul Hassan Khan then S. H. O. of New Foujdari Police Station, Shikarpur filed a complaint in the Court of the S. D. M., Shikarpur against Ghulam Husain son of Muhammad Safar and five others including respondent No. 6 Mazhar Ali stating that the accused/respondents are dangerous, that their remaining at large is not free from danger to the parties and that the Court would, therefore, be pleased to pass orders under section 117, Cr. P. C. A perusal of this complaint would show that it was filed on the basis of an application made by one Noor Ahmad Alvi to the C. P. I., Shikarpur. In this application the said Noor Ahmad Alvi complained that a petty share of Survey No. 45 in Deh Jani Taluka, Shikarpur measuring four acres had been granted to his son Fazal Ahmad and another equally small share of the same survey number had been granted to Ghulam Hussain Siddiqui the accused No.

1. A dispute arose between the parties over this land and Noor Ahmad AM applied to the A. R. O. for partition as a result of which the Supervising Tapedar arrived upon the scene, partitioned the land in the presence of the parties and demarcated the boundaries in each case. Noor Ahmad Alvi then proceeded to cultivate his divided portion and when the harvest arrived the crop was harvested and kept there on the land. Noor Ahmad further complained that Ghulam Hussain and the other accused/respondents were creating trouble and he apprehended imminent danger from them both to his life as well as to his property. There was 41so every possibility of a breach of the peace. The accused/respondents No. 1‑5 were produced in Court on the day of the filing of this complaint namely 28‑3‑1961 whereas the accused/respondent No. 6 Mazhar Ali voluntarily surrendered himself on 5‑4‑1961 and was directed to appear the next day 6‑4‑1961. On 28‑3‑1961 an order under section 112, Cr. P. C. had been read out to the accused/respondents Nos. 1‑5 and on 6‑4‑1961 the same order was read out to the accused/respondent No. 6 in which they were called upon to show cause why each of them should not be ordered to execute a bond in the sum of Rs. 1,000 with one surety solvent in the like amount for maintaining good behaviour for a period of twelve months. The surety should be of Zamindar Class paying land revenue of Rs. 1,000 per year and residing near the accused so as to be able to control their activities and movements to the satisfaction of the Court. It is of interest to note that from 6‑4‑1961 to 24‑4‑1962 t'aere had been in all thirty dates of hearing in this case and that the only progress made throughout this period was at the hearing on 15‑3‑1962 when the statement of the S.H.O. Gul Hassan was recorded. On each and every other date of hearing the case was adjourned for one reason or another.

4. Now, the order passed under section 112, Cr. P. C. against the accused/respondents in so far as it calls upon them to produce sureties who pay a certain amount of land revenue and who reside within a certain radius of their homes is an order containing conditions which have already been held by this Court and other High Courts to be onerous and therefore illegal. Thus in Criminal Revision Application No. 475/1960 decided by Justice Abdul Hameed on 16‑1‑1961 and again in Criminal References Nos. 410 and 411 of 1961 decided by me on 22‑1‑1962 similar conditions in orders under sections 112 and 117, Cr. P. C. have been held to be onerous and, therefore; illegal and the proceedings have, therefore, been quashed. On this ground, then, the proceedings in this matter which in May 1961 were transferred from the Court of the S. D. M., Shikarpur to that of the Sub‑Judge and F. C. M., Shikarpur and are now pending in this latter Court must to be quashed.

5. There is also 'the ground of delay in the disposal of these proceedings.' In Muhammad Husain v. The State (P L D 1959 Lah. 322) it was held that an inordinate delay in the disposal of a criminal case is an abuse of the process of the Court. Protracted proceedings are a mockery of the law and must be deemed to be an abuse of the process of Court. In such cases the High Court has ample powers to set aside the proceedings in exercise of its powers under section 561‑A, Cr. P. C. Again in Shakoor Hashim v. The State (P L D 1960 Kar. 926) it was observed that the time that was taken in that case was so long that it would not be fair in the interest of justice to permit the proceedings to continue for a day longer. A reference was also made to the case of Fazal Karim v. The State (P L D 1957 Lah. 837) and in particular to the under‑mentioned extract there from that‑ "keeping a criminal case pending for five long years without doing anything substantial amounted to excessive abuse of process of law and denial of justice, and proceedings must, in the circumstances, be quashed."

6. In view, therefore, of the illegal conditions imposed in the order under section 112, Cr. P. C. and also the fact that for a whole year from 6‑4‑1961 to 24‑4‑1962 although there were thirty dates of hearing in the case and only the complainant was examined, I have no hesitation in quashing these proceed ings now pending in the Court of the Sub‑Judge and F. C. M., Shikarpur.

7. With regard to Criminal Reference No. 277/1962 this is the counter case to the one noticed above and in this case on 28‑3‑1961 the same S. H. O. Gul Hassan filed a complaint in the Court of the same S. D. M., Shikarpur against Noor Ahmad Alvi and six others which complaint is in the same terms as the complaint filed by him that same day in the same Court on behalf of Noor Ahmad Alvi and noticed already in Criminal Reference No. 276/1962. It is, therefore, unnecessary to repeat here the facts of this complaint. It will suffice to say that a similar order as in the above matter was made against the accused/respondents in this case under section 112, Cr. P. C. by the S. D. M., Shikarpur containing the same onerous and illegal conditions. In this matter, too, from 28‑3‑1961 to 24‑4‑1962, there were 29 dates of hearing in the course of which all that was done was that at the hearing on 3‑3‑1962 the complainant S. H. O. Gul Hassan was examined. Thus in this reference also the same two points of onerous and illegal conditions in the order under section 112, Cr. P. C. and of delay in disposal arise as in the above matter already noticed. I have, therefore, no hesitation in quashing these counter proceedings pending in the Court of the Sub‑Judge and F. C. M., Shikarpur to which they had been transferred from the Court of the S. D. M., Shikarpur.

8. With regard to Criminal Reference No. 278/1962, the parties to this reference are the same as in the above two cases. In this case on 28‑3‑1961 the same S. H. O. Gul Hassan applied to the same S. D. M., Shikarpur for action under section 145, Cr. P. C.‑in respect of the wheat cultivation lying on Survey No. 45 in Deh Jani Taluka Shikarpur. Although this application for action under section 145, Cr. P. C. was filed on 28‑3‑1961, and on that day the learned S. D. M., Shikarpur had passed an order directing issue of notices to the parties con cerned through the police to produce their witnesses and other documents concerning the disputed land on 6‑4‑1961, yet from that date up to 24‑4‑1962 although there had been no less than 25 dates of hearing, no progress at all had been made in this case. All that appears to have been done is that on 15‑3‑1962 the site was visited by the Magistrate and by consent one Ghulam Kadir, Supervising Tapedar was appointed as the Receiver of this property. It is thus apparent that there has been C an inordinate delay in the disposal of this application under section 145, Cr. P. C. and that this delay is sufficient ground for directing the quashing of these proceedings.

9. But, in the matter, there is also an additional ground and that is that for the new year commencing from April 1962, this piece of land in question which in previous years had been the cause of dispute and trouble between the parties, has not been allotted by the Government to either party. Being Government land it reverted to the Governmant. Thus, for the year commencing April 1962, there can be no further cause for any dispute between the parties.

10. Notices in these three references were served on the parties concerned and in Criminal Reference No. 276/1962 a reply signed by them on 7‑9‑1962 has been received which is in these words "The land, the subject‑matter in dispute has not been granted by the Assistant Revenue Officer, Shikarpur Sukkur Barrage to any party in the current year neither to us nor to the other party Nur Ahmad Alvi. The Rubkari to that effect has been issued to us by the Land Grant (Barrage) Mukhtiarkar Khairpur, which is submitted herewith. On account of no grantto any party the dispute has ceased, therefore, there is no objection if both the counter cases under section 107, Cr. P. C. be dismissed and the proceedings be quashed by this Hon'ble Court."

11. Thus, there being no cause or occasion for any dis turbance or breach of the peace or dispute between the parties, these proceedings under section 145, Cr. P. C. and now pending in l the Court of the Sub‑Judge and F. C. M., Shikarpur are also quashed. K. B. A./A. H. Proceedings quashed.