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Criminal Miscellaneous Application No. 221 of 1965, decided

on 3rd October 1966.

, S. 561-A-Case pending for 6 years and not a single witness examined by prosecution Distance of 350 miles between permanent residence of accused and venue of trial, causing untold inconveniences and heavy costs to accused-Proceedings quashed and accused discharged.

P L D 1957 Lah. 837 ; P L D 1959 Lah. 322 and P L D 1960 Kar. 926 ref.

A.H. Qureshi for Appellant.

S. Ale-Raza for A. A.-G. for the State.

Date of hearing: 21st September 1966.

This is an application under section 561, Cr. P. C. for quashing the proceedings and discharging the petitioner (Mst. Gulzar of Karachi) for the main reason that apt a single witness has been examined by the prosecution during the last 6 years. The prayer has been opposed by Mr. Syed Ale-Raza appearing on behalf of the State.

2. Relevant facts for our purpose are that on 13-5-50 Extra Assistant Commissioner and A.D.M. Nasirabad came to the house of one Jagan and secured his wife Mst. Bakht Rana for the reason that she had been abducted from the custody of her previous husband. He filed a complaint in his own Court implicating six persons. The petitioner is not mentioned as one of the culprits in that complaint. I may add here that the petitioner Mst. Gulzar is sister of Mst. Kharo mother of the above-stated Jagan and wife of Fazal Karim. The investigation was handed over to C. 1. A. Police who after the completion of the necessary inquiries sent up the present petitioner along with Fazal Karim and one Shamroz on 6-7-60, and thereafter not a single witness has been examined by the prosecution.

3. 'Copy of the complaint filed by E. A. C. and A. D. M., Nasirabad is marked Annexure 'AA' and it recites that on 13-5-60 he had gone to Usta Muhammad and secured Mst. Bakht Rana from the possession of Jagan. The copy of the charge-sheet is also produced and it is Annexure 'SB'. It is dated 7-7-60 and the allega tions made against the petitioner and two other accused are that they kidnapped women from Swat and sell them in different parts of Pakistan. The learned E.A.C. and A.D.M., Nasirabad had maintained the case diary from 14-5-60 till 7-7-60 when the charge sheet was filed against the petitioner along two others. The applicant contends that she continued to appear before the Additional District Magistrate, Jhatpat from 6-7-60 till 2-5-61 Copy of the case diary has not been produced by her as it was not available. She has produced certified copies of the case diaries relating to the period from 2-5-6I to 27-2-65 (Annexure CC) and contends that during this long period of four years no progress has been made in the case and even after 27-2-65 no evidence has been recorded. Diary dated 8-9-62, 26-10-62 and 15-11-63 appears to be relevant for our purpose and they are reproduced below: -

8-9-62. Record received from the E. A. C. and M. F. C., Nasirabad. Await formal order of D. M., Jacobabad, for transfer of the case from ordinary law to F. C. R.

26-10-62. Order No. S: T. 1056/JE dated 26-9-62 of D. M., Jacobabad received. Case is to be fixed under F. C. R: Issue process for 27-12-62.

15-11-63. R and P received back from District Magistrate, Jacobabad vide his letter No. A-3-30 (H. V. C.) 63/4006 dated 31-10-63 for trial of the case under the normal law. Hearing fixed for 30-11-63, summon all concerned."

4. Admitted position, therefore, is that during the last years not a single witness has been examined by the prosecution. Mr. Syed Ale-Raza the State Counsel while opposing this prayer had brought to my notice that this inordinate delay was mainly due to the absence of one or the other accused person. He had, there fore, suggested that instructions be issued to the trial Court to pro ceed with the case even though the principal accused Fazal Karim is not produced before it. I wish he had given such directions to the trial Court after this application was admitted and notice was issued to the State. The policy has been to do fair justice to the parties and dispose of cases expeditiously. To achieve this object new Courts have been established and the Government has, from time to time, amended tile law to minimise the procedure. But in this particular case, the learned Magistrate has disregarded everything and postponed the trial of the case for one reason or the other. Mr. A. H. Qureshi, the learned counsel for the applicant had taken the aid of a case reported in Malik Fazal Karim v. The State P L D 1957 Lah. 837. The facts of that case show that the case was pending for nearly for 5 years without doing any substantial progress. . In this particular case no progress has been made at all as trot a single witness has been examined, In view of this position the High Court, Lahore had quashed the proceedings. Another case brought to my notice is reported in Muhammad Hussain v. The State P L D 1959 Lah. 322. It was observed:

"if the prosecution does not take care to see that a case against an accused person is proceeded with expeditiously and allows it to linger on inordinately or delays its pro gress, the fault must lie at its door, whether of non-produc tion of sanction, the witnesses, the co-accused from jail, or by frequent transfers of case from Court to Court, by change of law or by the conduct of the prosecutor. The intention of the law is that a criminal case must be expeditiously disposed of without unnecessary delay. It is a mockery of law to allow criminal cases to proceed for four or five years without any 'progress. It is revolting to the conscience of a Judge under any system of law that a criminal case should take so long and still not be decided. If the prosecution fails persistently without reasonable cause to produce its witnesses, or seeks adjournments unjustifiably, it is the duty of a Court to proceed to judgment expeditiously and without unnecessary delay. Justice delayed is justice denied for the defence of the accused must suffer by lapse of time and the prosecution may also suffer likewise. A fair and speedy trial is the essence and essential of judicial administration in a civilised country. Protracted pro ceedings are a mockery of the law and must be deemed to be an abuse of process of Court. In such cases the High Court has ample powers to set aside the proceedings in exercise of powers under section 561-A of the Criminal Procedure Code."

One more case decided by this Court and reported in P L D 1960 Kar. 926 supports the applicant.

5. Lastly, it was brought to my notice that petitioner Gulzar is a permanent resident of Karachi, while Nasirabad, i.e. the venue of the trial is about 350 miles away from it. The untold inconveniences and heavy costs in going to Nasirabad and returning to Karachi would be a sufficient punishment. For all these reasons I allow the application, quash the proceedings and y discharge the petitioner Mst. Gulzar.

Application allowed.

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