Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Criminal Miscellaneous No. 728 of 1967, decided on 28th November 1968.
S. 561‑A‑Abuse of process of Court‑Delay in "investigation" of case‑Cannot be termed as abuse of process of Court.
Ghulam Qadir Khan v. The State P L D 1963 Lah. 32 ref.
M. S. Khawnja v. The State P L D 1965 S C 287 ref.
Kamal Mustafa Bokhary for Petitioner;
A. H. Sayed for the State.
This is an application for quashing of proceedings pending in the Court of Special Judge Anti‑Corruption, Multan, against the petitioner.
2. The petitioner was a Head Clerk in the Curative Branch in the office of the District Health Officer, Muzaffargarh from August 1951 to May 1959. He was transferred to Multan. Some cases of embezzlement were brought to light by the auditors. F. I. R. No. 6 dated 16th of January 1960, was registered at Police Station Sadar, Muzaffargarh under section 409, P. P. C. and 5(2) of Prevention of Corruption Act, 1947, on the basis of letters written by the Deputy Director Health, Multan. The F.I.R. was couched in general terms and mentioned that large amount of Government money from the office of the District Health Officer Muzaffargarh had been misappropriated in which a number of officials of the Department were involved. A specific item of the embezzlement of Rs. 5,320 was also mentioned which related to the price of 190 blankets. It was also generally alleged that a number of contingent bills during the months from March to May 1959 had been drawn and their amount was embezzled.
3. On the basis of this F. I. R. the petitioner was sent up for trial in two cases. One related to the misappropriation of a weighing machine, in which he was acquitted. The other charge related to the misappropriation of five blankets which were valued at Rs. 140. He was convicted in this case and sentenced to a fine of Rs. 500. His appeal in the High Court failed.
4. It was submitted by the learned counsel for the petitioner that in some other cases arising out of the same F.I.R. the petitioner was also sentenced to imprisonment and is now in Jail during his sentence.
5. In the present case, challan was submitted on 7th of May 1966. The Court summoned the petitioner for 21st of November 1966. The allegation against the petitioner is that he received Rs. 14,857‑8‑0 in April 1959, through one Ghulam Haider a Clerk in his office and in all misappropriated Rs. 17,811‑1‑0 in the month of April 1959. The present petition came up for hearing on 2nd of March 1967, before my brother Muhammad Jamil Asghar, J. who admitted the same issued notice to the State and stayed further proceedings in the case.
6. The learned counsel has raised the following contentions :‑
(i) that the F. I. R. was drawn up in this case on 16‑1‑1960 and the proceedings now started against the petitioner are extremely oppressive, as the alleged embezzlements had taken place in the months of April and May 1959 ;
(ii) that the Investigating Officer had signed his report under section 173, Cr. P. C. on 16‑12‑1963, but the challan was filed in Court on 7‑5‑1966, and this delay according to the learned Counsel is fatal to the prosecution ;
(iii) that sanction was available in June 1966, but no proceedings were taken till November 1966, and the Court itself delayed the matter unnecessarily for five months ; and
(iv) that nine years have elapsed since the commission of the alleged offence, and the petitioner is now called upon to face a trial which it will be difficult for him to defend.
7. The learned counsel in this connection relied upon Ghulam Qadir Khan v. The State (P L D 1963 Lah. 32). The question before the Division Bench in this case was whether the delay in investigation is or is not a sufficient cause for quashing the proceedings. The Bench observed as follows :‑
"In our view, there does not appear to be any sound reason for making a distinction between the delay which might occur during the investigation stage proceeding the institution of proceedings in Court, and the delay that might occur during the conduct of the proceedings in Court. The effect in both the cases is the same, namely, that justice is delayed, and tae accused, and in some cases possibly the prosecution may be seriously prejudiced by the long delay occurring between tile commission of the offence and the conclusion of the trial the delay in both cases if unjustified, will constitute un necessary harassment of the subject, by keeping the sword of prosecution hanging over the head of the accused for a long time. The proceedings must, therefore, be regarded as oppressive in either case and not calculated to secure the ends of justice. In both cases it is the process of the Court which is invoked, and therefore, if there is any abuse of the process of the Court."
8. It is correct that the launching of a prosecution after nine years against the petitioner is extremely oppressive and does not speak well of the efficiency of the investigating agency in this case. The law requires that an accused shall be tried pat the earliest possibility, and he cannot be kept in suspense for years and years. I am, however, afraid that it is not possible for me to accept the submissions made by the learned counsel. In M. S. Khawaja v. The State (P L D 1965 S C 287) the Supreme Court has held that limitation does not apply to criminal prosecution and it is inappropriate to examine questions of delay through the action 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. Their Lordships also notice the case of Ghulam Qadir Khan, relied upon by the learned counsel for the petitioner. It. appears from the observations made at page 291 of the report that their Lordships drew a distinction between the acts of the investigating agency and the proceedings in Court. They quoted the following lines from Ghulam Qadir Khan's case:
"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."
and observed that the 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 of the Court, and rarely involves employment of any Court process. It was further observed that "the ends of justice" to secure which the inherent 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.
9. While dealing with these observations of their Lordships of the Supreme Court, the learned counsel for the petitioner submitted that their Lordships did not completely exclude the possibility of quashing of proceedings in a case where investigation had taken very long and referred, particularly, to reason No. 4 of the reasons which their Lordships had cata logued on the same page while considering the case of Ghulam Qadir Khan.
10. The learned counsel for the State submitted that there was documentary evidence to prove the guilt of the petitioner and the report submitted under section 173, Cr. P. C. clearly showed that there was a proper foundation for the prosecution which the police had launched. In my view, the judgment of the Supreme Court referred to above clearly excludes the factor of delay in investigation from the purview of section 561‑A of the Criminal Procedure Code. Their Lordships particularly referred to the phraseology of this section and it appears from the tenor of their judgment that the acts of the investigating, agency cannot be termed as abuse of the process of Court.
11. While I feel that the delay of nine years in this case remained unexplained and appears to be oppressive, I have no alternative but to dismiss this petition in view of the law laid down by the Supreme Court. I order accordingly.
A copy of this order may be sent to the Director, Anti Corruption, to make an enquiry to find out as to why the submission of challan was delayed for about seven years in this case.
Petition dismissed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer