P L D 1965 Supreme Court 287 (PLP)

CORNELIUS, C. J.‑The petitioner, an engineer, is being prosecuted under the Prevention of Corruption Act, 1947 in respect of certain acts allegedly performed in 1958. The matter came under the notice of the Anti‑Corruption Department in 1960, and a case was registered in 1961, and after investigation, sanction to prosecute was sought but was withheld, it is stated, by an order of the 22nd June 1963. That decision was changed, it seems, and sanction for prosecution was accorded by the Provincial Government on the 2nd May 1964, and the case was then put into Court, where the petitioner appeared for the first time on the 28th July 1964. His statement was recorded on the 14th October 1964, and the 23rd/24th November 1964, were fixed for recording of prosecution evidence, but in the interval, he moved a writ in the High Court for quashment of the prosecution, on the ground of inordinate delay. By an order dated the 23rd November 1964, a learned Single Judge of the High Court refused the writ, holding that the contention that the "prosecution amounts to abuse of the process of the Court, is not available," .and that the delay of some 3 years in sanctioning prosecution was not itself a sufficient circumstance justifying quashment of the proceedings. Mr. Altaf Sikandar appearing for the petitioner, asks for special leave to appeal against the High Court decision. He admits that, in law, the prosecution is competent, despite the length of time which has elapsed since the commission of the alleged offences, and despite the time taken by the Provincial Government over issuing the sanction to prosecute. He wishes the Court to take into consideration the views expressed in two judgments of the West Pakistan High Court, quashing prosecutions where delay was one of the grounds advanced. A learned Singe Judge in the case of Fazal Karim v. The State (P L D 1957 Lah. 837) relying on the maxim "justice delayed is justice denied," quashed a prosecution for an offence of forgery reported in June 1952, when the case had been put into Court in March 1953, and thereafter, until, 1957, no steps had been taken, because in the meantime Special Judges had been appointed and "the Public Prosecution was still in doubt as to how and in which Court the case should proceed." Hence there is no doubt as to the proper forum. The case there was a complicated one of procurement of pension payments by forging of names on some six pension payment orders. Three culprits were named in the initial report, as primarily responsible with the help of seven others. The learned Single Judge thought the trial had "been turned into a complete mockery", and rendered the opinion that "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"; and further "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." Referring to the risks of prejudice both to‑ the defence as well as to the prosecution arising out of delay, the learned Judge held as follows:‑ "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 impression is gained from these quotations that in the learned Single Judge's view time was of the essence for the competency of a criminal prosecution, and to that extent, we must observe that his views cannot be accepted as of universal application. Limitation does not apply to criminal prosecutions, and it is also inappropriate to examine questions of delay through the actions of the Government, or the prosecution authorities, as if they gave rise to equities, on the same footing as in a civil matter inter partes. Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the State. It can only be in a very rare case that a superior Court acting under its inherent power "to prevent abuse of the process of any Court or otherwise to secure the ends of justice", would deem it appropriate to act so as to place an alleged offence outside the operation of the criminal law, on incidental grounds such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law. Therefore, the decision in the case of Fazal Karim is to be considered as applying to its particular facts and circumstances. One of the decided cases on which it proceeds is an unreported case, where a prosecution was quashed, so it appears in the judgment, because though the case had been put into Court in December 1953, "the Department had not been able to get sanction for the prosecution of the accused until the 6th October 1955." Assuming that the reproduction of the reasoning in the unreported case is correct, it nevertheless cannot be accepted as laying down a rule of limitation, either in a strict, or a directory sense, and must be held to apply only in the special facts of that case. Mr. Altaf Sikandar relied also on a more recent decision given by a Division Bench of the same High Court, in the case of Ghulam Qadir Khan v. The State (P L D 1963 Lah. 32). There, the allegations were of embezzlement of monies between the years 1950 and 1953, which were investigated in the Department of Co‑operative Societies for three years, before being placed before a Board, which found a sum of over Rs. 77,000 to be due from the accused, which he paid in 1958. Thereafter, decisions were taken more than once at the highest level (Chief Minister) that the case should be "withdrawn" (though none had yet been filed) because the money due had been paid, but on the insistence of the Inspector‑General of Police, police investigation took place and criminal cases were put into Court in January 1961, whereupon the accused moved the High Court for quashment of the case under section 561‑A, Cr. P. C. After examining a number of decided Indian cases, pre‑Partition and post‑Partition, the learned Judges, set out some general views, such as "delay . . . will constitute unnecessary harassment . . by keeping the sword of prosecution hanging over the head of the accused for a long time" and thus "the proceedings must be regarded as oppressive . . . . . . and not calculated to secure the ends of justice"; "in both cases, it is the process of the Court which is invoked . . . . . . . but repeating that "delay by itself is not sufficient" to establish "abuse of the process of the Court"' they considered certain cases in which delay though prolonged, arose out of the case itself, and concluded that "The circumstances connected with the delay . . . . will have to be examined in each case" to determine "whether the delay constitutes an abuse of the process of the Court or not, and no valid distinction can be made in the delay which occurs during the investigation stage, or that occurs during the trial." With reference to the last‑quoted observation, we should point out that abuse, as attracting the inherent power of the Court, must be "abuse of the process of any Court", and "the investigation stage" is, generally speaking, outside the purview o the Court, and rarely involves employment of any Court process. Further, "the ends of justice" to secure which the inberent power may be invoked, have reference to the purposes which the judicial process is intended to secure, and it is difficult to include the actions of investigating agencies within the scope of judicial process. On the other hand, it is possible to agree with the observation that the circumstances of each case, in which the B inherent power is invoked, must be examined with care 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 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 would 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. In the case of Ghulam Qadir Khan, the learned Judges found good cause to quash the proceeding in the following natters viz:‑ (1) the alleged culprit had made good monies found due from him, three years earlier; (2) he had been assured of "withdrawal" of all cases by two Chief Ministers, before he made the payment, which he might otherwise not have made; (3) his defence was prejudiced by the delay, for example, one Saeed Ahmad who was responsible for maintaining the accounts had died in the meantime; and (4) for such delay as had occurred, the petitioner was not to blame at all, and at least three years of this delay ."was entirely inexcusable." These circumstances are certainly of weight to support the quashment ordered in that case. We say so in order to emphasise that each case of the present kind must rest on its own peculiar facts and circumstances, In the present case, we do not see any indication that the prosecution has been ordered merely in order to harass the petitioner. Nor is there any indication of intention, by the prosecution or on the part of any person, to procure an indirect or perverted result from the case, which seems to be essentially simple. No departmental proceedings are referred to in the papers before us, and it would appear that if the prosecution is scotched at this stage, the allegation against the petitioner is likely to go unexamined altogether. That is clearly not "an end of justice". Accordingly, we dismiss this petition. A. H Petition dismissed.