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Criminal Miscellaneous No. 553-Q of 1971, decided on 24th November, 1982.

---S. 561-A read with Penal Code (XLV of 1860), Ss. 419 8 420--Quashing of proceedings--Case pending trial before a Magistrate for last 4/5 years and prosecution so far produced only one witness who also failed to identify petitioner as culprit--Petitioner not named in F.I.R. nor any role attributed to him either in F.I.R. or in report submitted under section 173, Cr.P.C.--Proceedings quashed, in circumstances.

M. S. Khawaja v. The State P L D 1965 S C 287; Atlas Khan and 4 others v. Azmat Khan and another 1980 P Cr. L J 1018 and Mst. Hameeda v. The State and another P L D 1973 Kar. 478 ref.

Sh. Ziaullah for Petitioner.

Abdul Sattar Ali Chaudhry for the State.

Date of hearing: 24th November, 1982.

This criminal miscellaneous petition under section 561-A, Cr.P.C. seeks quashment of the proceedings against the petitioner under sections 419 and 420, P.P.C. in the case (State v. Nazir Ahmad, etc.) pending in the Court of Qazi Faqir Ullah, the then Magistrate 1st Class, Gujrat.

2. On 11th March, 1966 a case under section 419/420, P.P.C. was registered at Police Station, City Gujrat at the instance of Mr. Anwar Rasheed, Manager, Standard Bank Ltd., Gujrat, against one Khawaja Yar Muhammad whose real name subsequently, during the course of Investigation, was found to be Muhammad Younas.

3. In the course of investigation, two more persons, i.e. Muhammad Anwar petitioner and one Nazir Ahmad, a co-accused were also involved in that case. After completing the investigation, the challan was submitted in the Court by the middle of March, 1967 against aforesaid three persons.

4. The present petition seeking quashment of the proceedings against the petitioner was filed on 13th November, 1971 and by that time statement of only one prosecution witness could be completely recorded while partial testimony of another witness was also recorded. According to the calendar of witnesses forming part of the report under section 173, Cr.P.C. the number of prosecution witnesses is 28. The witness who was examined by the time the present petition was filed bid not identify the petitioner in Court.

5. The petitioner, as already observed, has not been named as an offender in the F.I.R. Even in the report under section 173, Cr.P.C. no specific role is attributed to the petitioner. It is simply alleged that the specimen writing obtained by him as a result of opinion given by the Handwriting Expert corresponded with the questioned writing.

6. A careful perusal of the record of the learned trial Court reveals that 4/5 years delay since after the submission of the challan till the filing of the under consideration quashment petition occurred mainly for the following reasons:-

(a) non-appearance of P.Ws.;

(b) frequent transfer of the case from one Court to another; and

(c) non-appearance in Court of Muhammad Younas, of the principal accused.

7. The petitioner, however, attended the Court on numerous dates of hearing fixed in the case except on two occasions i.e. 7th July, and 27th January, 1970. On these two dates he failed to appear in his illness supported by the medical certificates. On 3^rd July, 1969 however, neither any P.W. was in attendance nor any of the co-accused. Similarly, on 27th January, 1970 no P.W. was present and Muhammad Younas co-accused was also absent.

8. The learned counsel for the petitioner vehemently argues that the petitioner is entitled to the quashment of proceedings on two grounds, viz. the long delay and it being a case of no evidence so far as the petitioner is concerned.

9. So far as the plea of long delay is concerned, it may be observed that the case was registered as back as 11th March, 1966. Challan was submitted after one year of the registration of the case and during the period of 4/5 years, the prosecution could produce only P.W. out of 28. Thus, there has been positive delay in the trial. As regards other contention, it has already been observed, that the petitioner has not been named in the F.I.R. No role has been attributed to him the F.I.R. or even in the report under section 173, Cr.P.C P.W. who has been examined in the case so far has not identified petitioner as a culprit. In M. S. Khawaja v. The State P L D 1965 S C it was observed:-

"To find 'abuse' it would be necessary to see in the perversion of the purpose of the law, such case has to cause harassment to an innocent party, to bring about delay or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue and similar perverse results.

In Atlas Khan and 4 others v. Azmat Khan and another 1980 P Cr. L J 1018 it was found that where the delay would constitute unnecessary harassment by keeping the sword of prosecution hanging over the head of the accused for a long time, the proceedings must be regarded as suppressive and not calculative to secure the ends of justice. In Mst. Hameeda v. The State and another P L D 1973 Kar. 478 it was observed: " obviously to permit a prosecution to continue upon allegations which do not constitute an offence can only be an abuse of process but it does not I think follow that whenever such an allegation exists, however, flimsy the evidence which supports it and however transparently dishonestly the allegation is made, the Court must stand by and allow obviously innocent persons to suffer all the agonies of a trial often prolonged in such matters. V cannot but think that if a case which cannot possibly succeed is allowed to continue this must result in harassment of the accused persons whose acquittal is in any way certain and that this would be an abuse of the process of the Court and that in any event under section 561-A an order to quash the proceedings would be one which would secure the ends of justice. The ends of justice do not I think contemplate the force of a trial which can result in an acquittal only."

10. In the light of the circumstances of this case, seen with reference to the aforementioned judicial precedents, I have come to a positive con clusion that the case in hand is a clear illustration of an abuse of the process of the Court and its proceedings, so far as the petitioner is concerned, if allowed to continue, would defeat the ends of justice and would perpetuate injustice.

11. In this-view of the matter, the under consideration criminal miscel laneous petition is allowed and the proceedings under sections 419 and 420, P.P.C. against the petitioner in the case State v. Nazir Ahmad pending in the Court of Qazi Fakhar Ullah, the then M.I.C., Gujrat, are quashed.

S.G.D. Proceedings quashed.

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