This is a petition for quashment of the proceedings of a criminal case, State v. Khuda Bux alias Khaddo and 9 others under sections 266, 368, 395, 397, 336, P. P. C. And 19-E of the Arms Act.
2. The facts in brief are that one Mst. Hakimzadi daughter of Rais Abdullah Khan Pathan had inherited vast agricultural property. Hassan, nephew of Abdullah Khan, married Hakimzadi and looked after her land. Mst. Hajra wife of Abdullah Khan had also inherited property from her husband. After the death of Hassan complainant Haji Muhammad Saleh looked after the two women and managed the landed property. Khuda Buz and Rabnawaz Pathans claimed part of this property as heirs of Hassan. They, therefore, conspired to abduct the two women and to murder complainant Haji Saleh Muhammad. As a result of this conspiracy on 1-11-1962 at about 9 p.m.
Khuda Bux, Rab Nawaz and three others came in a jeep to the house of Mst. Hakimzadi and after firing gunshots they forcibly abducted Mst. Hakimzadi and also picked up the double barrel shot- gun of the com--plainant lying in the house and got way in the jeep. A report was lodged at Sekhat Police Station con 2-11-1962 at 2 a. m. The same night. On 19-11-1962 Police sent up the charge- sheet implicating 10 accused persons who are the petitioners in these quashment proceedings.
3. The case was transferred for trial to the Court of Mukhtiarkar and F. C. M., Halla. Evidence of Mst.
Hakimzadi was recorded on 27-2-1963. Thereafter the case was transferred to the Court of 1st Extra Joint Civil Judge and F. C. M., Hyderabad. An application was then moved before the Commissioner as a result of which this case was transferred for trial before the Jirga under the Criminal Law Amendment Act, 1963. Petitioners moved the High Court against their trial before the Jirga and their petition was allowed and the case was withdrawn from the Jirga and referred back to ordinary Court. The Commissioner, Hyderabad Division appealed against judgment of the High Court before the Supreme Court of Pakistan in the year 1965. The record and proceedings as well as the Police papers were called by the Supreme Court. Meanwhile the Criminal Law (Amendment) Act, 1963 was amended and the appeal filed by the Commissioner in the Supreme Court became infructuous.
The case was then referred back to District Magistrate, Hyderabad. Case then came to the Court of 1st Extra Joint Civil Judge and F. C. M., Hyderabad and thereafter to the Court of IInd A. C. M., Hyderabad without any progress, until the promulgation of the Law Reforms Ordinance. It was then sent to the Court of IIIrd Additional Sessions Judge, Hyderabad in January 1976. The case is still pending without trial in that Court since the Court of IIIrd Additional Sessions Judge, Hyderabad remained vacant for want of the Presiding Officer. The Police papers thereafter were found to be untraceable and even the accused/petitioners could not be supplied the copies of the Police statements etc. As required under the amended procedure.
4. It has been argued by Mr. Aftab Akhund on behalf of the petitioners that the alleged incident occurred in the year 1962 and until the year 1978 the trial has not even commenced. That the petitioners had faced this trial for 16 long years and this delay was shocking. That the petitioners have been subjected to mental agony and undue harassment and there was no likelihood of the case coming to an end; the complainant has since died and the witnesses have become untraceable.
5. Since limitation does not apply to criminal prosecutions; and delay through the actions of the Government authorities or the prosecution agency cannot be treated on the same footing as in Civil matters between the parties because, the prosecution for a criminal offence are commenced in public interest, a question, arises, whether the delay caused on account of actions of Government officials could be regarded as basis for exercise of inherent powers by the High Court for consideration of such delay to be abuse of the process of Court.
6. As far back as the year 1960 this Court had taken the view in the case of State v. Shakoor Hashim Patel and others (PLD 1960 Kar. 926), that where a matter was pending for six months without the proceedings having been commenced, this was accepted as one of the grounds for quashment of the proceedings as per judgment of Khamisani, J. Thereafter in State v. Amanat Ali and another (PLD 1963 Kar. 110) my learned brother, Kharal, J. Was of the view that where a complaint had dragged on for nearly 13 years and had not crossed the stage beyond the issue of process, the continuance of such proceedings amount to an abuse of process of Court. The proceedings, were, therefore, quashed and the accused discharged. Thereafter in a Lahore case, Abdul Haq v. The State (PLD 1964 Lab. 246) Jamil Hussain Rizvi, J., relying on the earlier decisions of Lahore High Court in PLD 1957 Lab. 837, PLD 1959 Lab. 322 and PLD 1963 Lab. 32, held that where criminal trials were delayed, the High Court would quash the proceedings to prevent grave abuse of the process of law, as inordinate delay in the conduct of criminal cases could not be tolerated. In Muhammad Mustrfa Khan v. The State (PLD 1965 Kar. 237) it was on the other hand observed that where a case was pending before the Magistrate for about a year and the prosecution evidence had not yet been concluded it could hardly be regarded as a ground for quashing the proceedings. Directions were issued to the Magistrate concerned to expedite the disposal of the case.
7. This question then came up for consideration before the Supreme Court. The question was considered in the case of K. S. Khawaja v. The State (PLD 1965 SC 287) by such eminent Judges as Cornelius, C. J. And S. A. Rahman, J. It was observed by Cornelius, C. J. As he then was, that the view that time was of the essence for the competency of a criminal prosecution, could not be accepted as of universal application. Limitation does not apply to criminal prosecutions, and it would be inappropriate to examine the questions as to delay through the actions of the Government, or the prosecution authorities, as if they gave rise to equities, on the same footing as in civil matter inter partes. It was further stated in that judgment that every prosecution for criminal offence was to be deemed to have been commenced and continued in the public interest, as a duty of the State.
That it would only be in a very rare case that a superior Court acting under its inherent power to prevent abuse of the process of Court or otherwise to secure the ends of justice, would deem it appropriate to act, so as to place an alleged offence outside the operation of the criminal law, on incidental grounds such as that of delay, or for any reason other than the reasons for deciding the question whether the allegation is sufficient to constitute an accusation of an offence in law. As observed in the above decision, the circumstances of each case in which the inherent powers of the High Court are invoked must be examined with care to deter mine whether the judicial proceeding is really intended to secure, the ends of justice or is an abuse of the process of the Court. The Court must come to a finding that the proceedings if permitted to continue would defeat the ends of justice or in other words would either operate or perpetuate an injustice. To find an abuse, it would be necessary to see m the proceedings, a perversion of the purpose of the law, such as to cause harassm ent to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue. For instance, where the defence was prejudiced by the delay, or where the petitioner could not be blamed for such delay then those circum--stances could be considered as being weighty to support the quashment. Each case must, however, rest on its own peculiar facts and circumstances.
8. Thus as observed in the above decision, mere delay could not be regarded as a ground for quashment, unless the Court could come to a definite finding after careful examination of the case, that continuance of the proceed--ings would not secure the ends of justice but would on the contrary defeat the ends of justice. This matter was again examined in the case of Ghulam Muhammad v. Muzammil Khan and 4 others (PLD 1967 SC 317) by Hamoodur Rehman, J. It was observed that the inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has, after examining the evidence produced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose an offence. The inherent powers are preserved to meet the lacuna in the Criminal Procedure Code in extraordinary cases and are not intended for vesting the High Courts with powers to make any order which they are pleased to consider to be in the interest of justice. These powers are as such, controlled by principles and precedents in the same manner as express statutory powers.
9. It was further observed in that case that the reasons given by the High Court were by no means cogent. If in fact the offence had been committed justice required that it should be enquired into and tried. If the respondents are not guilty they have a right to be declared as honourably acquitted by a competent Court. On the other hand, if the evidence against the respondents disclosed a prima facie case then justice clearly required that the trial should proceed according to law. The mere fact that a long period had expired since initiation of proceedings is no ground for quashing the criminal proceedings as was pointed out in the case of M. S. Khwaja v. State. Thus a delay of 9 years after the start of the proceedings was held to be insuffi--cient as a ground for quashment. The principle was emphasised once again by the Supreme Court that law must make its course unless the continuation of the proceedings constituted abuse of the process of Court necessitating exercise of inherent powers to remedy a wrong for which no suitable remedy had been provided for and which would otherwise cause grave injustice in the shape of harassment to an innocent party. The test was, whether the proceedings would be in furtherance of injustice rather than for securing the ends of justice.
10. The principle of delay regarded as abuse of the process of Court was, however, re-enunciated by the Supreme Court in the case of Ahrar Muhammad and others v. The State (PLD 1974 SC 224).
Although these observations were regarding the ground of delay as being sufficient for grant of bail the question of delay as a ground for quashment of the proceedings was also incidentally referred to: "It is true that the view of this Court has consistently been that mere delay by itself is not a sufficient ground for the granting of bail; but at the same time, it cannot be said that inordinate or unjustified delay in the prosecution of a case amounting to an abuse of the process of law can never be taken into account as relevant for the granting of bail. If the delay is so inordinate or so scandalous or so shocking as to amount clearly to an abuse of the process of law there can be no reason either in principle or in law as to why it cannot be treated as a sufficient ground for the granting of bail. If such delay can be sufficient for quashing the criminal proceedings then it can also be equally good ground for the grant of bail."
11. Applying the above principles to the present case it becomes evident that the petitioners have been dragged from Court to Court for a long period of 16 years without any result. By this time the complainant has died and the witnesses have become untraceable. The Court where the case is pending is said to be without a Presiding Officer and it is not known when the proceedings would commence. It has even been pointed out that the police papers appear to have been lost in transit and they are not traceable. No copies of the police statements could thus be supplied to the accused persons and without the copies it would not be possible under the law to proceed with the case. Thus the proceedings, if continued, may not come to their logical end for one or the other reason. They are likely to be protracted for an indefinite length of time. The continuance of the proceedings would not result in furthering the cause of justice. On the other hand by further dragg- -ing on the proceedings, the petitioners would be subjected to untold hardships and harassment, as the major part of their life would be spent in facing the proceedings, which could not be possibly concluded. Thus the continuance of these proceedings would perpetuate an injustice rather than secure the ends of justice. Under these circumstances it should be a fit case for exercise of inherent powers.
12. In the result the proceedings of the above case are accordingly quashed and the petition is allowed.