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Criminal Miscellaneous Application No. 966 of 1984, decided on 17th January, 1985.
‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), S. 307/149/148‑‑Quashing of proceedings‑‑Proceedings remained pending for five years before committing Court and for 8 years before trial Court, trial yet not concluded‑‑Held: Case a classic example of gross abuse of process of Court‑‑Procedings quashed, in circumstances.
P L D 1957 Lah. 1837 and P L D 1959 Lah. 322ref.
Syed Sami Ahmad for Applicants.
Akmal Waseem for the State.
Date of hearing: 17th January, 1985.
This is an application for quashment of criminal case filed on the report of one Nisar Ahmad against five applicants for offence under sections 307, 147, 149, 452 and 323, P.P.C.
The incident had taken place on 23‑11‑1971. After investigation, the police sent up the case before a Magistrate concerned for commitment proceedings on 15‑12‑1971 when charge was read over to the accused persons. Evidence of the witnesses were recorded and the case remained pending before the committal Court up to 4‑11‑1976. By this time six prosecution witnesses had been examined. Thereafter, the case was sent up to the Court of Sessions on 4‑11‑1976 in pursuance of the provisions of the Law Reforms Ordinance, 1972. From November, 1976 till this day not a single witness has been examined by the trial Court i.e. III Additional Sessions Judge.
Earlier an application for quashment was moved on behalf of the applicants in his Court which was disposed of by the learned Chief Justice on 11‑2‑1983 with the observation that the applicants should first get their application under section 265‑K, Cr.P.C. decided by the trial Court and that in case of an adverse order by the trial Court, the applicants may move this Court again for quashment of the proceedings.
The trial Court dismissed the application of the applicants under section 265‑K by his order, dated 13‑2‑1984. Hence the present application under section 561‑A, Cr.P.C. for quashment.
The main ground urged by Mr. Sami Ahmad learned counsel for the applicants in support of the above application is that for eight years during which the case remained pending Before the trial Judge not a single witness has been examined for no fault of the applicants. He has also produced certified copies of the order‑sheet showing that the case had been adjourned by the trial Court from 4‑11‑1976 onwards either on account of absence of the witnesses or absence of the Presiding Officer or on account of adjournment of the connected case. On some dates the case was adjourned without assigning any reason. It has, therefore, been argued that this delay of eight years is a gross abuse of the process of the Court and is sufficient to quash the proceedings.
In support of the above plea the learned counsel has relied on P L D 1957 Lah. 1837 in which delay of five years in disposal of criminal case was held to be an abuse of process of law and the proceedings were quashed on this ground. He has also relied on P L D 1959 Lah. 322. In this case also there was delay of five years and the trial had not concluded. It was held that the protraction of the trial for five years was an abuse of the process of the Court.
The above two decisions are fully attracted to the facts of the present case in which the trial has not concluded although the proceedings remained pending for five years before the committing Court and for eight years before the trial Court. There can be no instance of more gross abuse of the process of the Court in which the applicants have been subjected to protracted criminal proceedings for the last thirteen years. This ground itself is sufficient for quashment of the criminal case against the applicants.
Even on merits the case is not likely to end in conviction. Except complainant, Nisar Ahmad no witness has supported the prosecution case. All the main witnesses of Nisar Ahmad excepting P.W.4 Saeed Ahmad were declared hostile because they did not support the prosecution case. P.W.4 Saeed Ahmad was not declared hostile although he did not support the prosecution story as given by complainant Nisar Ahmad. On the contrary he has stated that Nisar Ahmad and his men had raided the house of the applicants with tin of kerosine oil in order to set their house on fire whereupon applicant Shaukat had fired with gun in order to scare away the assailants and that nobody was injured as a result of the gun shot. Even Nisar Ahmad complainant does not state anyone was injured as a result of the shots fired by Shaukat. From the very prosecution evidence it is apparent that applicant Shaukat had fired with gun in self‑defence in order to scare away assailants and not with the intention to kill anyone.
I am, therefore, satisfied that no useful purpose shall be served by allowing the trial Court to proceed further with the trial as it is not likely to end in conviction. Consequently the application is allowed that criminal case pending against the applicants in the Court of III Additional Sessions Judge, Karachi are quashed
S. G. D. Proceedings quashed.
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