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Criminal Miscellaneous Application No. 1774 of 1986, decided on 6th April, 1987.

‑‑‑S. 561‑A‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 16‑‑Quashing of proceedings‑‑Abuse of process of Court‑ Private complaint‑‑Statement of complainant recorded under S.200, Cr.P.C.‑‑Trial Court, without holding preliminary enquiry issuing notices‑‑Accused arrested and produced before Court and attending Court regularly since then‑‑Neither complainant nor any witness appearing for more than 5 years‑‑Processes issued repeatedly against witnesses but in vain‑‑Counsel for complainant making statement that he had lost contact with complainant since long and was not in a position to prosecute case‑--Application under S. 25‑K dismissed by Trial Court‑ Prosecution case based on oral testimony of prosecutrix herself‑ Prosecutrix not medically examined on point of rape or maltreatment‑ Inordinate delay of 5 years not explained‑‑Inordinate delay in prosecution of case, held, would amount to abuse of process of Court which was sufficient to vitiate proceedings‑‑Proceedings quashed in circumstances.

Amanullah v. The State P L D 1965 Kar. 310; Sheroo v. The State 1976 P Cr. L J 1408; Mansab Ali v. The State 1976 P Cr. L J 461 and 1975 P Cr. L 1 1057 ref.

K.M. Nadeem for Petitioners.

A.A. Muhammadally, A.A.‑G. for the State.

Date of hearing: 6th April, 1987.

This application under section 561‑A, Cr.P.C. has been filed for quashment of proceedings of Criminal Case No. 283 of 1985 pending against the appellants on a direct complaint filed by one Mst. Khurshid Begum under section 16 of Zina (Enforcement of Hudood) Ordinance 1979, before IIIrd Additional Sessions Judge, West Karachi.

2. It was alleged in that complaint by the said complainant Mst. Khurshid Begum that the applicants used to deal in women who were brought illegally from Bangla Desh and sold in Pakistan to various persons. She further alleged that in the same way she was also sold by the applicants to certain Punjabies who maltreated her. She escaped from their custody and came to Karachi and stayed with her relations. On coming to know of her escape the applicants issued threats to her. Consequently she filed a direct complaint on 22‑3‑1982. Statement of the complainant Mst. Khurshid Begum was recorded as required by section 200, Cr.P.C. by the IXth Additional Sessions Judge, Karachi. The learned Additional Sessions Judge without holding a preliminary enquiry decided to issue notices against the applicants under section 13 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. On 27‑4‑1983 the applicants, were arrested and produced before the Court and are attending the Court regularly since then but neither the complainant .nor any one of the witnesses has appeared before the Court. The complainant's advocate Mr. M. Shah gave a statement before the trial Court on 12‑2‑1986 that he has lost contact with the complainant since long and as such has no instructions, and he is not in a position to prosecute the case. Process were issued from time to time to compel the appearance of the complainant and her witnesses but all in vain. The applicants had also approached the learned trial Court with an application requesting for their acquittal under section 265‑K, Cr.P.C. but it became to be dismissed on 12‑2‑1986.

3. Mr. K.M. Nadeem, Advocate for the applicants has submitted that the case is false and out of enmity. The complainant has disappeared and there is no likelihood of securing of her presence in the near future. The applicants are attending the trial Court for the last 5 years and sword of dampelas has been hanging over their heads for all this time. He has, therefore, submitted that this is a fit case in which quashment should be ordered.

4. He has relied upon the case of Amanullah v. The State reported in PLD 1965 Kar. 310 where proceedings were quashed by Raymond, J on account of delay of 5 years in the investigations of the case and in its conduct in the Court which amounts to an abuse of the process of the Court sufficient to vitiate the proceedings. In this ruling the contention of the Assistant Advocate‑General (presently Chief Justice of Pakistan Mr Justice Muhammad Haleem) was to the effect that it is not every delay in investigation or in the conduct of a prosecution that suffices to vitiate those proceedings. It was necessary for the Court to see whether there is a good reason for this delay and whether it can be justified. In fact this submission of the learned A.A.‑G. precisely depicts the correct legal position in such cases. Reliance was also placed in the case of Sheroo v. The State reported in 1976 P Cr. L J 1408 where a Single Judge of this Court quashed the proceedings in a case where trial was lingering on for 6 years without any progress and was not likely to be completed in the near future. This case related to the abduction of one woman and the whereabouts of the prosecutrix were not known and, therefore, it was held that there was no possibility that any offence may be established against the applicant. In the case of Mansab Ali v. The State reported in 1976 P Cr. L J 461 the proceedings were quashed as the failure of the prosecution to produce evidence despite of 16 adjournments held to amount abuse to the process of the Court in a case of kidnapping. In another ruling reported in 1975 PCr.LJ 1057 S.M. Siddiq v. The State Samdani, J quashed the proceedings where no prosecution witness was examined within 5 years and there was no chance of proof of alleged embezzlement.

5. In the present case also it would appear that neither the complainant nor her witnesses have appeared in Court for the last more than 5 years in spite of repeated coercive process although the latest 9 policy of law in direct complaints is that the complainant himself should ordinarily produce the witnesses. The complainant's case as would appear from the record is based on the oral testimony of prosecutrix herself. She was not even referred to the Medical Officer on the point of rape or maltreatment. The delay of 5 years is not explained at all and there seems no justification whatsoever, not to say about a good reason, for this delay.

I am, therefore, satisfied that the inordinate delay in the prosecution of this case will amount to abuse of the process of the Court which is sufficient to vitiate the proceedings. I, therefore, allow the application and quash the proceedings.

S.A./A‑44/K Proceedings quashed.

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