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Criminal Miscellaneous Application No. 4 of 1965, decided on 11^th March 1966.

, S. 561‑A‑Public servant charged in 1966 for offences under Ss. 467, 468, 469, 477‑A, 120‑B & 161, P. P. C. read with Prevention of Corruption Act (II of 1947), S. 5(2) alleged to have been committed in 1950 Accused no longer in Government service, official record not complete and accused likely to be severely prejudiced in defend ing himself on charges relating to incidents about 20 years old‑Allowing prosecution against accused to proceed, held, would amount to an abuse of process of law and denial of justice Proceedings quashed.

Abdul Haq v. The State P L D 1964 Lah. 246 ; Ghulam Qadir Khan v. The State P L D 1963 Lah. 32, Muhammad Hussain v. The State P L D 1959 Lah. 322; Malik Fuzal Karim v. The State P L D 1957 Lah. 837 and The State v. Shukoor Hashim Patel P L D 1960 Kar. 926 considered.

, S. 4‑Special Judge can take cognizance upon receiving complaint of facts constituting a scheduled offence or upon a report by any Police Officer‑Not bound to accept final recommendation of Circle Officer, Anti‑Corruption.

‑Delay‑View that time is of essence for competency of a criminal prosecution‑No longer accepted as of universal application‑Distinction to be drawn between delay in investigation and delay during trial of case.

It is now authoritatively established that the former view that time is of the essence for the competency of a criminal prosecution can no longer be accepted as of universal application. A distinction has to be made between delays in the course of the investigation and delays during the trial of the case.

M. S. Khawaja v. The State P L D 1965 S C 287 ref.

Muhammad Hayat Junejo for Applicant.

Osman Ghani for A. A.‑G. for the State.

Date of hearing : 7th March 1966.

This criminal revision application is directed against an order of the learned Senior Special Judge, Nawabshah, passed in Criminal Case No. 174 of 1963 under sections 467, 468, 469, 477‑A, 120‑B and 161, P. P. C. read with section 5(2) of Act It of 1947 against the applicant and the co‑accused.

2. By this order the learned Senior Special Judge, Nawabshah on a report made to him under section 173, Cr. P. C. by the Circle Officer, Anti‑Corruption Establishment, Nawabshah praying that this case may be disposed of as 'A' Class summary i.e. as being neither true nor false, directed that process be issued against the applicant and others for the offences as mentioned above. It is now prayed on behalf of the applicant that this order may be quashed.

3. Now the brief facts giving rise to this matter are that somewhere in the year 1963 complainant Haji Sahib Dino son of Allah Warayo Dhauro resident of Taluka Nauhshahro Feroze submitted an application to the Anti‑Corruption Establisment at Nawabshah alleging therein that some 13 years previously in the year 1950 he had purchased agricultural lands in Taluka Naushahro, Feroze from one Hindu and that these lands had dis honestly been altered in the Khatas by the applicant who was then the Tapedar of that beat to the names of Muhammad Umar and others shown as co‑accused in the said application. . On this application, a case under the above mentioned sections was registered and the investigation proceeded in the course of which the statements of other residents of Taluka Naushahro Firoze were recorded. The Circle Officer, Anti‑Corruption Establishment, Nawabshah, then submitted a report in which he reproduced the contents of the statements recorded by him and showed that the record is not absolutely clear, and that certain transfer entries relating to these lands and alleged to be in the hand writing of the alleged Tapedar are not verified and are not signed by the Supervising Tapedar or any other officer. Enquiries were made by this Circle Officer from various other Tapedars whose names are given and probably vv account of efflux of time they do not remember the actual happenings of years ago and are therefore, unable to give correct answers. The Circle Officer also pointed out in his report that although the applicant Tapedar Badruddin took charge in the year 1949, from that date till 1956, the pages of the charge Fard of the book are not available. In the concluding paragraph of his report, the Circle Officer stated‑

"I am therefore, disposing of this case under section 173, Cr. P. C. as A' Class under, the orders of Anti‑Corruption Officer Southern Region Hyderabad under his confidential No. 3‑N/60‑30823‑26 dated 3‑11‑1962 with a request, to issue the summary in the above case."

It was on this report that the learned Senior Special Judge, Nawabshah passed the impugned Order observing that a prima facie case was made out against all the accused, directing the issue of process against them, and that the Provincial Government be moved for the grant of the necessary sanction.

4. I have heard Mr. Muhammad Hayat Junejo, the learned advocate appearing on behalf of the applicant. He has contended in the first place that under the Anti‑Corruption Laws and in particular the Pakistan Criminal Law Amendment Act, 1958 (Act No. XL of 1958), a Special Judge is vested with no suo motu powers for taking cognizance of criminal cases. Referring to section 4 of this Act, the learned Advocate pointed out that special Judge only has jurisdiction to take cognizance of any offence committed within his limits upon receiving a complaint of facts which constitute such offence or upon a report in writing of such facts made by any police officer, and that powers given under section 190(1)(c) of the Code of Criminal Procedure to a Magistrate are expressly omitted from section 4 of Act (XL of 1958). In the alternative the learned Advocate pointed out that the delay of 13 years on the part of the complainant in coming forward with this complaint has not been explained at all and that, therefore, in these circumstances, his client will be great prejudiced by this belated prosecution. Mr. Muhammad Hayat Junejo stated that his client is no longer in Government service and that after this lapse of time it would be impossible for him to have access to the Official record for the purposes of defending himself. Mr. Hayat referred to Reported Cases. I have heard Mr. Osman Ghani on behalf of the State, in reply to the contentions of Mr. Hayat and he referred me to a recent Supreme Court decision reported in M. S. Khawaja v. The State (P L D 1965 S C 287).

5. With regard to the first contention of the learned Advocate appearing on behalf of the applicant that the learned Senior Special Judge has erred in taking cognizance of this case because ha had no authority to do so. I am certainly not in agreement with him. Under section 4 of Act XL of 1958, the learned Special Judge is empowered to take cognizance upon receiving a complaint of facts constituting a scheduled offence or upon a report in writing of such facts made by any police officer. In this particular case, the learned Special Judge, Nawabshah after perusing the report under section 173, Cr. P. C. made to him by the Circle Officer Anti‑Corruption, Nawabshah reached the conclusion that a prima facie case had been made out and ; therefore, he directed the issue of process against the applicant and his co‑accused. It is no doubt true that in the last paragraph of his report as reproduced above, the Circle Officer has out of deference to his superior officer asked for 'A' Class Summary, but the learned Special Judge was not prepared to agree with the confidential letter addressed to the Circle Inspector by his superior officer. It seems to me that the learned Special Judge was not bound to accept the final recommendation in para. 10 of the report of the Circle Officer particularly when he found that this last para. was not in consonance with the previous nine paragraphs. Hence, I find no want of jurisdiction in this order of the learned Special Judge, Nawabshah.

6. However, the second contention of the learned Advocate appearing on behalf of the applicant, concerning the inordinate delay of 13 years on the part of the complainant in coming for ward with this complaint has weighed with me and has led me to examine in detail the Case Law on this point in order to decide whether these proceedings should be quashed as being an abuse of the process of the Court. I have carefully. studied the recent ruling of our Supreme Court referred to me by Mr. Osman Ghani the learned Advocate for the State and I find that it is now authoritatively established that the former view that time is of the essence for the competency of a criminal prosecution can no longer be accepted as of universal application. A distinction has to be made between delays in the course of the investigation and delays during the trial of the case. Now in this particular case observe that the complainant in the year 1963 came forward with a complaint against the applicant for having dishonestly changed the Khatas relating to his lands 13 years earlier in the year 1950. Thus it is perfectly plain that the delay that has occurred in this case is not attributable either to the police investigation of the case or to delays in the trial of case in Court. The delay here is solely due to the complainant and to the complainant alone who slept over this matter for 13 years before coming forward with this complaint. It is as a result of this delay on the part of the complainant that the investigating officer in his report has stated, that the record is not clear, certain records are missing, pages of the Fards Books from 1949 to 1956 are missing and that the Tape dars whom he examined were not able to remember the actual happening of years ago. Thus, with the record of the case in this hopeless condition, it does not appear to me to be worthwhile now in the year 1966 to direct the prosecution of the applicant for what he is alleged to have done or omitted to do in the year 1950. I agree with Mr. Hayat that as his client is no longer in Government Service and the official record is not complete, he will be severely prejudiced in defending himself in 1966 on a charge relating to incidents of 1950 and prior years. I have also considered the cases reported in Abdul Haq v. The State (P L D 1964 Lah. 246) Ghulam Qadir Khan v. The State (P L D 1963 Lah. 32), Muhammad Hussain v. The State (P L D 1959 Lah. 322), Malik Fazal Karim v. The State (P L D 1957 Lah. 837) and The State v. Shakoor Hashim Patel (P L D 1960 Kar. 926) and I am of the opinion that there is no point in allowing this prosecution against the applicant and his) co‑accused to proceed any further because it would amount to an abuse of the process of law and a denial of justice.

8. In these circumstances, I would allow this application and quash these proceedings now pending in the lower Court.

Application allowed.

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