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Criminal Miscellaneous Application No. 790 f 1978, decided on 29th January, 1979.
-----S. 561-A-Quashment of proceedings--Proceedings against petitioner for offence under S. 448, P. P. C. sought to be quashed on grounds (i) regard being had to delay in prosecution of case, any further proceedings would amount to gross abuse of process of law; (ii) on material that exist no case under S. 448, P. P. C. made out against petitioner-Inordinate delay of 12 years, however, occurring in completion of trial and even order of 4 High Court for deciding case within a period of two months not obeyed-Proceedings being clear abuse of process of law, quashed in circumstances.-[Abuse of process of law].
Asad Ali Bilgrami for Applicant.
Salima Nasiruddin for the State.
Date of hearing : 29th January, 1979
The present application under section 561-A, Cr. P. C. has been filed by applicant Abdul Sami seeking quashment of proceedings which are pending against him on a charge-sheet submitted by the police under section 448, P. P. C. The case is presently before the Additional City Magistrate, Gulbahar and Pak Colony, Karachi.
2. I have heard Mr. Asad Ali Bilgrami, Advocate for the petitioner and Mrs. Salima Nasiruddin, Advocate for the State. The latter has not opposed the grant of relief to the petitioner. As.
3. The brief facts of the case are that on 6-8-1965 Mst. Bano Bi, wife of Syed Zafar Ali, lodged a report at Liaquatabad Police Station in respect of an offence of trespass. It was stated in the report that her brother Abdul Karim had informed her that Abdul Salam, father of .the present petitioner Abdul Sami had taken possession of quarter No. 706/1 in Federal B' Area, Karachi. It was further disclosed by Abdul Karim to the present petitioner that Mst. Tahira, the daughter of Abdul Salam, who was married to Abdul Karim was also living in the same house. An allegation was made by Mst. Bano in that her goods were lying in the premises in question. Investigation was made and a charge sheet was submitted for trial in Court in 1967.
4. Mr. Asad Ali Bilgrami has raised two-fold contentions before me firstly that regard being had to the delay in the prosecution of this case any further proceedings would amount to gross abuse of process of law, secondly that on the material that exists no case under section 438, P. P. C. was made out against the applicant.
5. Copies of the evidence so far recorded by the trial Court together with the copies of statements under section 161, Cr. P. C. of Mst. Bano Bi and Syed Muhammad Nabi have been produced. All that is stated by Mst. Bano Bi in her evidence in relation to the present applicant is to the following effect
"Abdul Salam accused is present in the Court and second person is his eldest son and according to the saying of Mohallah people he also connived with his father."
The above passage would show that it is not the case of the complain ant that the present applicant bad committed an offence of criminal trespass. The learned Advocate, however, in all fairness, has pointed out that Syed Muhammad Nabi had implicated the present applicant in his police statement. He has, however, contended that such police statement was recorded on 13-4-1967, viz. after seven months of the incident and the report. What is more that Syed Muhammad Nabi had not conveyed the information in regard to the alleged criminal act of the applicant to complainant Mst. Bano Bi. Additionally, there are circumstances which cast a suspicion on the prosecution story because at present Mst. Tahira who is closely related to the complainant is occupying the house.
6. On the ground of delay I must express my complete disappointment with the manner in which the case has proceeded. The offence, if any, was committed earlier than 5-8-1966 and a charge sheet was submitted in Court in April, 1967. Twelve years have passed but the, case has not reached its conclusion. There are no justifiable reasons for such inordinate delay and it reflects badly on the conduct of the case. An application had earlier been made before the erstwhile High Court of Sind and Baluchistan (Criminal Revision Application 53 of 1974) and Meer Khuda Bakhsh Marri, J. (as he then was) had passed an order dated 15-11-1974 directing the trial Court to decide this case within a period of two months. In spite of such direction by this Court the trial Court has not complied with the order. Who may have been responsible for disobedience of this order does not fall for determination in these, proceedings but suffice it to say that not only twelve years have passed but even the order of this Court has not been obeyed. In the meantime the main accused Abdul Salam has died and the present applicant Abdul Sami has had to undergo enormous inconvenience and expenses to defend himself in these unending proceedings.
7. I am clearly of the view that the proceedings in the case of State v. Abdul Sami under section 448, P. P. C. now pending before the First Class Magistrate, Gulbahar and Pak Colony, Karachi, are clear abuse of the process of law and I quash the proceedings.
Petition accepted.
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