Find a Lawyer

Criminal Miscellaneous. Application No. Q-562 of 1984, decided on 5th December, 1985.

‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), Ss. 420, 468 & 471‑‑Quashing of proceedings‑‑Delay in conclusion of trial‑‑Police taking more than three years to complete investigation‑‑Case lingering for over a decade in trial Court after submission of challan‑‑Despite efflux of 13 years since registration of case against accused, case not making even a slight progress, even after such long period neither formal charge‑sheet framed against accused nor sanction for prosecution of accused accorded‑‑No witness examined by prosecution during intervening period, spread over a decade‑‑End of case not in sight‑‑Case not fit to be permitted to continue further to serious detriment of accused, quashed in circumstances.

Ghulam Qadir Khan v. The State P L D 1963 W.P. Lah. 32; Malik Fazal Karim v. The State P L D 1957 W.P. Lah. 837; Abdul Haq v. The State P L D 1964 W.P. Lah. 246; Sheroo alias Shahroom v. The State and 4 others 1976 P Cr. L J 1408; Muhammad Safer and another v. The State 1983 P Cr. L J 1396; Muhammad Hussain v. The State P L D 1959 W.P. Lah. 322 and Abdul Hafiz v. The State P L J 1975 Cr. C. Lah. 393 ref.

‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), Ss. 420, 468 & 471‑‑Quashing of proceedings‑‑Delay in trial‑‑Police taking more than three years to complete investigation‑‑After submission of challan, case fingering for over a decade in trial Court‑‑Case not making even a slight progress‑ Pendency of case for such a long period, held, could not be without damaging impact on accused‑‑Accused on one hand, had suffered agony of being dragged before police and in Court for so long and protracted litigation on the other hand had robbed accused of their peace of mind and had also cost them heavily in financial terms‑‑Case pending before trial Court quashed.

Ghulam Qadir Khan v. The State P L D 1963 W.P. Lah. 32 ref.

‑‑‑S. 561‑A‑‑Principle "Justice delayed is justice denied"‑‑Delay of thirteen years in disposal of trial‑‑One who was not vigilant would not deserve to be legally helped‑‑Case quashed on ground of delay.‑ [Delay].

‑‑‑S. 561‑A‑‑Principle‑‑"Delay defeats equity"‑‑Delay of thirteen years in disposal of trial‑‑Case quashed.‑‑[Delay].

‑‑‑S. 561‑A‑‑Delay in disposal of trial‑‑Criminal cases are required to be disposed .of with utmost speed‑‑Inordinate delay caused in conclusion of trial of criminal cases criticised.

Ghulam Qadir Khan v. The State P L D 1963 W.P. Lah. 32; Malik Fazal Karim v. The State P L D 1957 W.P. Lah. 837; Abdul Haq v. The State P L D 1964 W.P. Lah. 246; Sheroo alias Shahroom v. The State and 4 others 1976 P Cr. L J 1408; Muhammad Safer and another v. The State 1983 P Cr. L J 1396; Muhammad Hussain v. The State PLD 1959 W.P. Lah. 322 and Abdul Hafiz v. The State P L J 1975 Cr. C. (Lah.) 393 ref.

Khalid Athar for Applicant.

Abdul Waheed Siddiqui for the State.

Date of hearing: 5th December, 1985.

This is a petition under section 561‑A: CP.P.C. whereby the petitioner Israr Hussain has sought quashment of the case pending against him and other co‑accused namely respondents Hafiz A. Qadeer, Muhammad Ashraf Iftikhar, Wajid Hussain and Maqbool Hussain in the Court of Special Judge Anti‑Corruption (Central), Karachi.

Briefly stated facts of the case are that on 15‑8‑1972, on the written complaint made by Mr. M.R. Syani, the proprietor of Anis Company, Victoria Road, Karachi the F.I.R. was registered. The prosecution case as disclosed in the F.I.R. is that Mr. M.R. Syani issued a cheque for Rs.8,696 in favour of Messrs Cooper & Cooper, Karachi to be drawn on Habib dank, Victoria Road Branch, Karachi. Somehow the cheque which was a crossed cheque fell in the hands of the petitioner and the co‑accused, who with help of one Ashraf Butt opened a fraudulent account in the name of the aforesaid Cooper & Cooper, Karachi, in the said Branch of the Habib Bank. It is alleged that the petitioner and the co‑accused succeeded in getting the cheque in question encashed from the said Bank. Following the registration of the case as stated above the police made due investigation and ultimately submitted the challan in the Court on 13‑12‑75. The case is pending in the trial Court since then without registering any progress.

The quashment of the case pending in the trial Court has been sought on the sole ground of delay in disposal of the case. It was submitted by the learned counsel for the petitioner that despite the efflux of 13 years since registration of the case against the petitioner and the co‑accused, the case has made not even a slight progress. According to him the sanction necessary for prosecution of the petitioner who is admittedly a public servant has not been obtained nor the Court has framed a formal charge against the accused so far. Therefore, not even a single witness has been examined in support of the prosecution case. Accordingly the learned counsel expressed the view that in the wake of the above factual position the delay in disposal of the case was tantamount to gross abuse of process of the Court and, therefore, the only appropriate course would be to quash the case pending in the lower Court. In support of his arguments he has placed reliance on several authorities.

Mr. Abdul Waheed Siddiqui who appeared for the State did not dispute the factual position as stated above by the learned counsel for the petitioner. He frankly endorsed the argument that this is a fit case for quashment.

This case was admittedly started with lodging of the F.I.R which is shown to have been registered on 15‑8‑1972. Thereafter the police took more than three years to complete the investigation. It is not denied that police submitted the challan in the Court of Special Judge Anti‑Corruption as far back as 13‑12‑1975. Thus the case has lingered for over a decade in the Court of Special Judge. During all A these years not even a slight progress has been registered. It is conceded that even formal charge‑sheet has not been framed against the petitioner and the co‑accused nor sanction for prosecution of the petitioner has been so far accorded. Furthermore no witness has been examined by the prosecution, during the intervening period which is spread over almost a decade.

The pendency of the case for such a long period could not be without damaging impact on the accused. On one hand they have suffered the agony of being dragged before the police and in the Court, for so long and on the other hand the protracted litigation has seemingly robbed the accused of their peace of mind and has also cost them heavily in financial terms. "Justice delayed is justice denied" and "Delay defeats equity" are well‑known judicial maxims. One who is not vigilant does not deserve to be legally helped. There is a long line of authorities in which delay in disposal of criminal cases has been deprecated. In such authorities the High Courts have invariably exercised the extra‑ordinary jurisdiction vested in them under section 561‑A, Cr.P.C. and have quashed the proceedings pending in the lower Courts. I may now examine the authorities relied upon by the learned counsel for the petitioner. The first case in this connection is of Ghulam Qadir Khan v. The State P L D 1963 W.P. Lah. 32. In this case the D.B. comprising Qadeeruddin Ahmed and Anwarul Haq, JJ., after reviewing a number of cases, quashed the proceedings in seven cases pending against the petitioner in the Court of Additional District Magistrate, Multan. The observations made by their Lordships are as follows:‑

"In view of all these circumstances, it seems to us that the institution of criminal proceedings in Court, after nearly eight years of registration of the cases, constitute a clear abuse of process of the Court and this Court will be failing in its duty if it did not intervene to stop this abuse."

In the same judgment their Lordships expressed their views as under:‑

"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 preceding the institution of the proceedings in Court and the delay that might occur during the conduct of the proceedings in the Court. The effect in both the cases is the same, namely, that justice is delayed, and the accused, ands in some cases possibly the prosecution, may be seriously prejudiced by the long delay occurring between the commission of the offence and the conclusion of the trial. The delay in both cases if unjustified, will constitute unnecessary harassment of the subject of keeping the sword of prosecution hanging over the head of the accused for a long time."

In another case reported as Malik Fazal Karim v. The State PLD 1957 W.P. Lah. 837, Muhammad Shari, J. took the view that the keeping of a criminal case pending for five long years without doing anything substantial amounted to excessive abuse of process of law and denial of justice and proceedings must, in the circumstances, be quashed.

In the third case of Abdul Haq v. The State P L D 1964 W.P. Lah. 246 Jamil Hussain Rizvi, J. while dealing with the case involving the delay of eleven years observed as follows:‑

"The law requires that a criminal trial should be concluded without inordinate delay. The present case is eminently one in which the delay in its disposal amounts to grave abuse of the process of law. I would, therefore, quash these proceedings."

The next case relied upon by the learned counsel for the petitioner is of Sheroo alias Shahroom v. The State and 4 others 1976 P Cr. L J 1408 in which the trial lingered on for six years without any progress and was unlikely to be completed in near future. The learned single Judge of this Court quashed the proceedings against the applicant on the ground of delay.

Another case on the point of delay is of Muhammad Safar and another v. The State 1983 P Cr. L J 1396. In this case the trial was pending for over 9 years and in the meantime the trial Court did not even examine the accused. It was held:‑

"This is the height of injustice in shape of abuse of the process of the Court which was being made against the accused by the trial Court for over a period of nine years.

In the circumstances above, no further harassment and oppression of the accused can be allowed under law. That being so, in exercise of the powers vested in the High Court under section 561‑A, Cr.P.C. the challan report against all of the accused is dismissed and they are acquitted thereby."

In the case reported as Muhammad Hussain v. The State P L D 1959 W.P. Lah. 322, it was held:‑-

"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/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."

In the case of Abdul Hafiz v. The State P L J 1975 Cr. C. Lah. 393, the proceedings dragged down for about three years with little progress in the case. It was held that such delay amounts to abuse of process of Court entitling the petitioner to quashment of proceedings.

The legal position that is, enunciated in the above authorities is that criminal cases are required to be disposed with utmost speed. The inordinate delay caused in conclusion of the trial of such cases has always been bitterly criticised by the superior Courts who have invariably quashed the proceedings pending in the lower Court on the ground of delay. As stated above in the instant case more than 13 years have elapsed since registration of the case against the petitioner and his co‑accused. During all these years the case has made no progress whatsoever and, therefore, end of the case is not in sight. I am of the opinion that the case should not be permitted to continue further to the serious detriment of the accused. Accordingly the application of the petitioner is allowed and the case against him and other co‑accused (respondents) pending in the Court of Special Judge Anti‑Corruption (Central), Karachi is quashed.

H.A.K. Case quashed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.