1992 P Cr (PLP)

S. HAIDER ALI PIRZADA, J.

This is a petition under section 561-A, Cr.P.C. for quashment of proceedings now pending before the Drug Court on the ground that they amount to abuse of process of the Court. Seven petitioners who have fled this petition are Messrs Irza Pharma (Pvt.) Ltd., through its Managing Director and petitioners Nos.2 to 7 are Directors of Messrs Irza Pharma (Pvt.) Ltd. The petitioners are being proceeded against as accused persons in a Case No.252 of 1983 for offences under section 23(i)(a)(v) read with section 27(2)(6) and section 34 of the Drugs Act, 1976 which is pending in the Drug Court of Sindh and Balochistan, at Karachi on the basis of complaint instituted on 14-9-1983. The petitioners pleaded not guilty for the charges in the trial Court. All the petitioners have jointly filed in application under section 265-K, Cr.P.C. on 21-1-1987 which is also lying pending in the trial Court without any final orders having been passed. It is submitted on behalf of the petitioners that due to patent and gross illegalities committed by the first respondent and the Government Analyst, and their breach/violation of the mandatory provisions of the Drugs Act, 1976 and the Rules made thereunder, the prosecution of the petitioners was not proper or, maintainable and there was no likelihood of the petitioners being convicted of the alleged charges. Petitioners 2 to 7 have applied for exemption under section 205 read with section 540-A, Cr.P.C. from appearance in Court and such application is pending since 11-3-1989 but no final orders have been passed on it as yet. It is further submitted that the petitioners were put to grave hardship and financial burden/constraint on account of all the accused persons being personally present on each date of hearing from Lahore as the Lady accused are Pardah observing being merely sleeping, inactive Directors. It is submitted that the accused have been prosecuted on the basis of Test Report, dated 13-3-1983 of National Institute of Health which is totally illegal and void test report and is not fit to base a prosecution. It is the grievance of the petitioners that nearly seven years have elapsed but no evidence has been recorded so far and further material available with the prosecution to connect petitioners with the commission of crime alleged against them has been assailed on several grounds in support of which certain decisions have been cited seeking quashment of proceedings with Drug Court. We have heard Mr. Abid Hameed Puri, learned counsel appearing for the petitioners and Mr. Zaheer Qureshi, learned counsel appearing for the State. Mr. Abid Hameed Puri, learned counsel appearing for the petitioners has referred to several points, but eventually confined his arguments on the main two contentions:-- (1) That the delay of about seven. years in the conclusion of trial tantamounts to denial of justice, and this is an abuse of process of law. (2) That there is no probability of the petitioners, being convicted of any offence, as the test report is totally illegal and void test report and is not fit to base a prosecution. Reverting to the first contention of Mr. Puri it is to be observed 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. The point of delay was considered by the Honourable Supreme Court in M.S. Khawaja v. The State P L D 1965 SG

287. It was held as follows:-- "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 prosecution 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 parties. 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 pi event 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." The Honourable Supreme Court has left it open to exercise inherent powers to prevent abuse of process on the ground of delay, although in a very rare case. The provisions of Becton.265-K, Cr.P.C. cannot be invoked for recording acquittal on the ground of delay. Admittedly the petitioners had approached the trial Court by making applications under section 265-K, Cr.P.C. and under section 205 read with section 540, Cr.P.C. but the same are kept pending without any orders, which amounts to denial of prayer. It is well-settled legal position that the powers of trial Court under section 265-K, Cr.P.C. are co-extensive with the powers of High Court under section 561-A, Cr.P.C. and both can be resorted to. The Honourable Supreme Court has considered this question in Mian Munir Ahmed v. The State 1985 S C M R

257. The Honourable Supreme Court observed:-- "It would, of course, be proper to approach the trial Court in the first, instance but there is nothing to bar the High Court from entertaining, in appropriate cases, an application under section 561-A, Cr.P.C. directly." In these circumstances, the proper course is to allow first the trial Court to exercise jurisdiction under section 265-K, Cr.P.C. and if the application is dismissed then resort can be had to the remedy available in the High Court. Since the application under section 265-K, Cr.P.C. is already pending adjudication, we direct the trial Court to dispose of this application as well as application under section 205 read with section 540-A, Cr.P.C. within one month from today and report compliance. The petition under section 561-A, Cr.P.C. is disposed of in the above terms. N.H.Q./I-182/K Order accordingly,