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Criminal Miscellaneous No. 2238 of 1961, decided on 8th January 1962.

Penal Code (XLV of 1860)‑Sanction for prosecution not filed in Court‑Accused released without recording evidence-- Re‑challaned after receipt of sanction‑Delay, held, inevitable-- Trial on same facts, not abuse of process of law in circumstances of case‑Criminal Procedure Code (V of 1898), Ss. 249 & 403.

S. M. Zafar for Petitioner.

M. Iqbal for the State.

A case under section 161, P. P. C. and section 5 (2) of the Prevention of Corruption Act was penling against the petitioner in the Court of Khan Sher Bahadur Khan, Magistrate 1st Class and Provincial Special Judge, Rawalpindi. The Special Judge, by his order dated the 1st of November 1961, released the petitioner. Although no section has been mentioned in the order, but the order seems to have been passed under section 249, Criminal Procedure Code. Some time in November 1961, the petitioner was summoned to appear in the Court of Khan Said Afzal Khan, Special Judge, Peshawar at Rawalpindi, in a case under section 161, P. P. C. and section 5 (2) of the‑ Prevention of Corruption Act on the same allegations on which he had been released earlier. The petitioner has applied under section 561‑A of the Criminal Procedure Code for quashing these proceedings.

2. An order under section 249, Criminal Procedure Code, per se is no bar to the accused being tried on the same facts as section 403 of the Criminal Procedure Code does not bar a second trial. The contention of the learned counsel for the petitioner is that the second prosecution has been lodged after an inordinate delay, and, therefore, this trial would amount to an abuse of the process of law and consequently it is prayed that the proceedings be quashed. In support of his contention, the learned counsel has cited State v. Qamar‑uz‑Zaman (P L D 1960 Lah. 1199). This case would not apply to the facts of the present case as in that case the proceedings were quashed by the High Court under section 561‑A and a second trial on the same facts was held to be bad, because at the time of the quashing of the proceedings it was Dot the intention of the learned Single Judge quashing the proceedings that the accused be tried a second time on the same facts. It was also held in that case that in view of the inordinate delay the second trial would also amount to an abuse of the process of law. In the present case, the evidence was not recorded, because sanction for the prosecution of the petitioner from the appropriate Government had not been received. The delay in leading the evidence was therefore, inevitable. The petitioner has now been challaned after the receipt of the sanction from the appropriate Government. I do not consider that in these circumstances his trial on the same facts on which his challan was once presented in the Court of Khan Sher Bahadur Khan, Special Judge, would amount to an abuse of the process of law. The learned Special Judge should have returned the challan to the police when it was presented to him without the sanction, for being presented after the sanction from the appropriate Government was obtained. The delay in obtaining the sanction from the appropriate Government may be due to reasons beyond the control of the prosecuting agency and, therefore, they cannot be blamed for the delay.

3. There is no force in this petition, which is dismissed.

S. B.

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