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Criminal Miscellaneous Applications Nos. 1105 to 1107 and 1133 of‑1985, decided on 7th May, 1986.

‑‑‑S. 403‑‑Res judicata, principle of‑‑Quashment petition although not covered by S. 403, Cr.P.C, nevertheless, successive petitions one after the other excepting on fresh or additional grounds, held, not permissible‑‑Case lingered on for more than 12 years after disposal of earlier application for quashment, fresh application for quashment could not be barred by principle of res judicata, in circumstances.‑‑[ Resjudicata].

‑‑‑S. 227‑‑Charge, amendment of‑‑Trial Court has power to amend charge at any time before pronouncement of judgment.

‑‑‑S. 561‑A‑‑Quashing of proceedings‑‑Legal defect capable of being rectified during trial of accused, held, not to be pressed as a ground for quashment of case‑‑Quashment of proceedings declined on ground of misjoinder of charges.

‑‑S. 561‑A‑‑Quashing of proceedings‑‑Police took ten years to complete challan and Trial Court made little progress during twelve years after challan and thus applicant was dragged in case for over two decades and still end not in sight‑‑Case being a glaring example of grossest abuse of process of law and a mockery of justice, proceedings quashed, in circumstances.

Shamsuddin for Appellant.

A.A. Mohammadally, A.A.‑G. for Respondent.

Date of hearing: 27th April, 1986.

By this common judgment, I propose to dispose of four Criminal Miscellaneous Applications namely Nos. 1105 of 1985, 1106 of 1985, 1107 of 1985 and 1133 of 1985. By these applications the applicant Muhammad Mahmood Ahmed has sought quashment of four criminal cases pending against him under sections 409, 467, 477‑A, P.P.C. in the Court of Special Judge Anti‑Corruption, (Provincial), Karachi.

The facts leading to the above ca ea briefly stated as follows. In 1962 the applicant was a clerk attached to Mr. Uqaili, the Railway Magistrate. On conviction of the ticketless travellers by the said Magistrate, the applicant collected from the amount of fine imposed in each case as follows. In the case relating to Criminal Miscellaneous Application No.1105 of 1985, the amount collected was Rs.18,913 for the period from 1‑1‑1961 to 28‑11‑1961, in the case relating to Criminal Miscellaneous Application No.1106 of 1985, the amount collected was Rs.5,473.16 for the period from 1‑5‑1962 to December, 1962. In the third case relating to Criminal Miscellaneous Application No. 1107 of 1985, the amount collected was Rs.8,696.12 for the period from 3‑7‑1959 to 26‑12‑1959 and in the fourth case relating to Criminal Miscellaneous Application No.1133 of 1985 the amount collected was Rs.18,781.05 for the period from 7‑7‑1960 to 24‑1‑1960. It is alleged that instead of depositing the above amounts in the bank the applicant misappropriated the same. Accordingly four F.I.Rs. were lodged against him which were subsequently .bifurcated into seventeen cases. Following the usual investigation both the applicant and Mr. Uqaili the Railways Magistrate were challaned on 12‑12‑1972. However, in 1978 cases against the said Railway Magistrate were withdrawn.

As for the applicant, all the seventeen cases proceeded against him and upto 1984 only seven witnesses were examined in one case and copies of their statements were placed in each of the remaining sixteen cases. Meanwhile Criminal Appeals Nos. 67 to 72 of 1982 filed by S. Balighuddin were decided by this Court by judgment dated 27‑6‑1982 whereby retrial was ordered in all the said cases, as instead of examining all witnesses in each case, copies of statements of witnesses examined in one case were kept in the remaining cases. As soon as the said judgment came to the notice of the learned Special Judge, the P.D.S.P. moved an application for recalling all those witnesses whose statement were recorded only in one case for examining them also in the remaining sixteen cases. The application was allowed by order dated 4‑3‑1985.

Thereafter, the applicant moved an application in each case praying for his acquittal under section 265‑K, Cr.P.C. The learned Special Judge after hearing the parties rejected all his applications by order dated 25‑4‑1985. On the same date, the P.D.S.P. in charge of the State case applied for consolidation of all the seventeen cases into four cases which was allowed. In this way after the consolidation order was passed by the learned Special Judge four cases are pending against the applicant in the said Court. The present four applications, as mentioned above have been moved for quashment of the said four cases.

I heard the arguments of the learned counsel for the parties and also perused the relevant documents.

The learned counsel for the applicant has made the following submissions: ‑--

(i) that although the case was challaned in 1972 and charge was framed against the accused in 1973, yet neither the sanction for prosecution of the applicant who was public servant, accompanied the challan nor the learned Judge wrote for the same and as such the cognizance taken by the trial Court was without jurisdiction.

(ii) that after consolidation of seventeen cases the learned trial Judge framed charge against the applicant for the third time, dropping the charges already framed under sections 468, 477‑A and 109, P.P.C., in violation of subsection (4) of section 10 of the Pakistan Criminal Law Amendment Act, 1958 and, therefore, the trial of the applicant was vitiated.

(iii) that there is misjoinder of charges.

(iv) that the applicant has been dragged in the litigation for nearly two decades with no end in sight in the near future.

Before I take up the contentions raised by the learned counsel for the petitioner, I would like to dispose the preliminary objection raised by the learned A.A.‑G. that the quashment applications are hit by principle of res judicata. It was submitted by him in view of the earlier quashment applications filed by the applicant in 1974, the present applications are barred. The learned counsel for the petitioner however, contended that there is no such provision in the Criminal Procedure Code and that section 403, Cr.P.C, which indirectly refers to the said principle, does not cover application of quashment filed under section 561‑A, Cr.P.C. He was, therefore, of the view that the quashment applications filed by the applicant are unaffected by the disposal of earlier applications. His further argument was that even if the principal of res judicata is held applicable to the quashment applications, the petitioner was not prohibited to seek quashment on fresh or additional grounds. According to him after disposal of the earlier quashment applications in 1974, the applicant has been dragged for nearly 12 years and as such he was justified to file the present applications on fresh ground of the delay which was obviously not available to him at the time of filing earlier applications.

It may be observed that there is no express provision in the, Criminal Procedure Code except section 403, Cr.P.C. on the principle, of res judicata. Even though quashment application are not covered by section 403, C r . P . C. yet it would not be permissible to file successive quashment applications one after the other excepting on fresh or additional grounds. However, I agree with the learned counsel for the petitioner that at the time of filing earlier quashment applications which were filed in 1974, the ground of protraction of the cases was not available to him. It appears that after the disposal of the earlier applications the case have lingered in the lower Court for more than twelve years. Therefore, applicant could move fresh quashment applications on the said ground and consequently the present applications' are not barred by principle of res judicata.

As for the learned counsel's first contention as regards want of sanction, I may refer to the judgment of this Court dated 22‑12‑1975 by which earlier quashment Applicatidns No. 8 of 1974 and Nos. 679 to 693 of 1974 were disposed of. The said applications were obviously filed under section 561‑A, Cr.P.C. seeking quashment of the proceedings pending against the applicant in the Court of Special Judge‑cum‑Inquiry Officer, Karachi. As disclosed in the judgment referred to above the point of sanction was also raised on that occasion. It would appear that the learned Single Judge after elaborate discussion had held that since the petitioner had ceased to be a public servant at the time of his prosecution no sanction was required. He came to this conclusion despite the argument that before his prosecution the applicant became public servant on his re‑employment in the Agricultural Bank of Pakistan. The judgment shows that the learned Judge found no indication or record with regard 'to accused's re‑employment and, therefore, he left it to the special Judge to look into that matter. The observations in this connection are as under:‑---

"However, in the present case there is nothing on the record before me to prove the assertion of the petitioner. In fact this ground has even not been taken in the memorandum of petition. The petitioner has not even alleged in the petition that he has been so employed . . . . . "I am of the opinion that this objection should have been raised before the learned Special Judge‑cum‑Enquiry Officer and it is still open to the petitioner to raise it before him." Thus, the question of sanction was disposed of by this Court by the above judgment.

It was next contended by the learned counsel for the applicant that once the applicant was challaned for specified offence, the learned special Judge had no power to drop any of the charges framed against him without permission of the Government. In this connection he relied upon section 10(4) of Pakistan Criminal Law Amendment Act, 1958. According to him the learned trial Judge framed charge against the applicant three times and the last time when the charge was reframed against him following the consolidation of seventeen cases into four cases, the charge under sections 468, 477 and 109, P.P.C. was dropped. Therefore, his contention was that dropping of the charge violated the above provision of law and the whole trial was vitiated. It is true that as provided in section 10(4) of the 1958 Act permission of the Government is charge, if some sections are omitted by the trial Judge such omission cannot be construed as withdrawal of the charge in respect of such offences. Section 227, Cr.P.C. gives power to the trial Court to amend the charge at any time before judgment is pronounced. Section 227 reads as under:‑--

"227‑A. Alter charge.‑‑(1) Any Court may alter or add any charge at any time before judgment is pronounced.

(2) However, such alteration or addition shall be read and explained to the accused."

On reading of the above section no doubt is left in my mind that the trial Court has power to amend the charge at any time before judgment is pronounced. Therefore, the alteration of the charge referred to by the learned counsel has obviously been done by the learned trial Judge in exercise of powers conferred by above section. If the learned counsel was of the view that such alteration was illegal, it was open to him to move the trial Court for correction of the charge. The legal defect which is capable of being rectified during trial of the accused cannot be pressed as a ground for quashment of the case.

The learned counsel's next objection was with regard to misjoinder of charges. Without going into factual aspect of this objection it may be observed that even this defect if at all exists, can be removed by amendment of the charge. As stated above, since the trial Court has power under section 227, Cr.P.C. referred to above to amend the charge, the applicant could move that Court for the amendment. In any case the misjoinder of charges cannot be accepted as ground for quashment of the case.

The last submission made by the learned counsel for the applicant was that the applicant has been braving the agony of the litigation for over two decades. Therefore, he argued that since continuation of the cases pending against him amounted to abuse of process of law, this Court should intervene to order quashment of the same. No doubt the misappropriation of Government money allegedly committed by the applicant came to light for the first time in 1962 when Mr. Abdul Jabbar Uqaili, was the Railway Magistrate while travelling in a train without ticket. Since applicant was attached to said Railway Magistrate the case was registered against him on 28‑5‑1962 at the instance of the said Railway Magistrate. Thus, the tale of his woes started from that date. The police took ten years to complete the investigation as he was challaned in as many as seventeen cases of misappropriation on 12‑12‑1972. During all these years the sword of damocle kept hanging over his dead. It can very well be imagined rather than described in words how such long drawn investigation would have robbed his peace of mind.

It would be noticed that initially the aforesaid Railway Magistrate was co‑accused with the applicant in all the seventeen cases. But in 1978 all the cases were withdrawn so far the Railway Magistrate was concerned. It is 'a matter of consideration how the applicant alone was responsible for the alleged misappropriation. He was supposed to maintain cash books showing entries of all the monies collected from the ticket‑less travellers under direct supervision of the Railway Magistrate who had to do all the necessary checkings before initiating or signing such books and so also the challans for depositing of the said amounts in the Court. I am of the view that withdrawal of cases against the Railway Magistrate could not be without effect on the cases against the applicant.

After the cases were challaned, the trial Court made a little progress upto 1984 i.e. during twelve years after the challan. Only seven witnesses from the list of eighteen witnesses were examined in one case placing the copies of their statements in the files of other sixteen cases. After sometime the Court realized its mistake of placing the statements of the witnesses recorded in one case on the files of other cases without examining them in these cases. Such realization was made in the wake of the judgment of this Court dated 27‑6‑1982 in the Criminal Appeals Nos. 67 to 72 of 1982 (S. Balighuddin v. The State). Accordingly the P.D.S.P., incharge of the State case made an application for recalling the witnesses who were examined only in one case for the purpose of examining them in the remaining sixteen cases. After this prayer was allowed on 4‑3‑1985 the P.D.S.P. again moved another application on 25‑4‑1985 for consolidation of all the seventeen cases pending against the applicant into four cases, which prayer too was allowed by the Court. Thus, all such things which could be done immediately after challan was put up in Court were done after lapse of 13 years. In this way the protraction 'of the case continued. Following the amalgamation of the cases on 25‑4‑1985, the cases were put off for re‑framing of the charge and obviously starting with the trial afresh. Looking to the pace of progress made by the trial Court during last 12‑13 years, it could well be predicted how long the fresh trial was to take. However, in the meantime the applicant came to this Court and filed the present four applications.

At this stage I would like to make reference to the case of Israr Hussain v. The State 1986 P Cr. L J 574 in which police took more than three years to complete investigation and the case remained pending in Court and made no progress whatsoever despite the passage of 13 years. The case was accordingly quashed. A number of authorities have been referred in the above reported case in support of the quashment of the case on the ground of dewy.

I must say that the factual history of the instant case is worse than that of the above reported case. In the present case the applicant has been dragged in the case for over two decades and yet end is not in sight. It seems the circumstances of the case have rendered the applicant totally helpless. It is precisely in such case that this Court, has to exercise its extraordinary jurisdiction under section; 561‑A, Cr.P.C. and come to the rescue of the aggrieved party. It would be a mockery of justice if the cases pending against the applicant for over 14 years in the lower Court, apart from ten years taken by police in sending up the cases in Court, are allowed to continue any further. This case is the glaring example of the grossest abuse of process of law.

I have gone through the case diary of the lower Court. I do not agree with the arguments of the learned A . A .‑G that applicant himself has been responsible for the delay in trial. Of course he had moved applications for quashment of the proceedings even earlier in 1974. As stated above, those applications were disposed of by judgment, dated 22‑12‑1975. Since then the trial Court has made a ‑very little progress. That is to say that during more than ten years that have elapsed since the disposal of earlier applications, only seven witnesses out of 18 witnesses were examined in one case but this labour was also lost as the learned trial Court decided to recall the said seven witnesses to be examined in the remaining sixteen cases. After the order of the recall of witnesses on the application of the P.D. S. P ., the learned trial Court ordered consolidation of seventeen cases into four cases. In the wake of the consolidation, the cases were put off for reframing of charge and commencement of trial a fresh. Thus, after the applicant had suffered the agony of protracted litigation from 1962 to 1986, i.e. 24 years, his fresh trial in four cases was about to commence when he came to this Court. Obviously in each case eighteen witnesses are to be examined, which in the light of past progress made by the Court, would take another five years.

In view of the above discussion, all the four applications are allowed and the proceedings pending in the lower Court are hereby quashed.

S. G . D. Proceedings quashed.

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