1. ' This is a petition under section 561-A, Criminal Procedure Code, by Atlas Khan, Muslim Khan, Masai Khan and Hussain Khan son of Said Rehman, and Zameen Khan son of Yar Dost, residents of village Sangu, who are being prosecuted in the Court of Mr. Shah Hussain Afridi, Magistrate First Class, Peshawar, for the alleged commission of offences under section 448/148/149/323, Pakistan Penal Code.
2. ' The facts giving rise to this petition, so far they are necessary for dealing with the points involved are few and simple and may be stated thus quite shortly :- ' The prosecution in this case was launched on the report of Azam Khan respondent No.
1. At the Police Post, Pishta Khara on the 16th of January, 1974 on the allegations that the petitioner on the night between 14th and 15th of January, 1974 at midnight formed themselves into an unlawful assembly, armed with deadly weapons, and in prosecution of the common object of the said unlawful assembly, took forcible 'possession of the shop of Shahzada (P. W. 3) by beating up Azam Khan complainant (P. W. 1) and Nadir Khan (P. W. 2) son of Shahzada with the Butts of guns, who were then present in the shop. It was further alleged that the petitioners had also taken forcible possession of bags containing flour, sugar and other commodities. The report was later on incorporated in the First Information Report at Police Station, Tehkal.
3. ' The police, after investigation, put in Challan against petitioners in the third week of April, 1974 in the Court of a Magistrate First Class, Peshawar. Since then, no less than I50 hearings in the case have taken place, the last one being on 30th of July, 1979 when the position as depicted in the order of the Presiding Officer was that none of the remaining prosecution witnesses who had still to be examined was present. It was observed in the order that they should be summoned for 16th August, 1979.
4. ' It appears from the proceedings of the case that the Magistrate commenced recording the prosecution evidence on the 12th September, 1974, when he is stated to have recorded the statements of two prosecution witnesses. I have, however, been not able to find out the statements so recorded on the judicial file of the trial Court. Thereafter, the case was adjourned from time to time for recording the statements of the remaining prosecution witnesses till 24th of June, 1975 when the Presiding Officer of the Court woke up from slumber, all of a sudden, and recorded a note on the order sheet that it transpired from his inspection of the file that supplementary challan of Masai accused had not been submitted to Court. He, therefore, directed the local police to submit the supplementary challan. For this purpose, the case was adjourned five times. The submission of the said challan in the Court finds mention in the order of the Presiding Officer dated 25th August, 1975. Thereafter, the prosecution witnesses were summoned afresh. Several adjournments were made for this purpose till 4th June, 1978 wWen three prosecution witnesses, namely, Azam Khan P.
5. W. 1, Nadar Khan P. W. 2, and Shahzada P. W. 3, were examined and the case was then adjourned for summoning the remaining prosecution witnesses. This process of summoning them continued without any fruitful result till August, 1979, when file of the trial Court was requisitioned by this Court in consequence of the institution of the present . Petition for the quashment of criminal proceedings pending in the trial Court.
6. It will be seen from the order-sheets of the lower Court's file that innumerable adjournments were granted for the production of prosecution witnesses and during a long period ,of more than 5 years, only three witnesses could be examined by the trial Court. I am conscious of the difficulties of the prosecution in procuring the services of its witnesses and realize that a reasonable latitude should not be grudged to the prosecution in the matter of production of witnesses, especially in cases where the delay in effecting their service is due to reasons not attributable to the negligence or default of the prosecution. This latitude has, however, determinable limit and to me it would be an abuse of the process of the Court if the prosecution were allowed to go on merrily to produce its witnesses as it chose to do so and to be contented with merely routine orders from the Court of issuing process for the witnesses without the prosecution itself making an effective and a conscious effort to have the service of the witnesses effected, or to arrange for their pro diction in Court. The present case illustrates the indifferefion of the prosecution to 'see that the witnesses .Were served and produced in Court. And I consider that un-due indulgence was shown to the prosecution in tiles case by allowing it repeated adjournments extending over a period of about five years to produce its witnesses. Although delay by itself is not sufficient to establish "abuse of the process of Court" nevertheless, where the delay will constitute unnecessary harassment by keeping the sword o prosecution hanging over the head of the accused for a long lime, the proceedings must be regarded as oppressive and not calculated to secure B the ends of justice.
7. The case in hand, to my mind, is a clear illustration of an abuse of the process of the Court because the Criminal Proceedings, if permitted to continue any more in the trial Court, would defeat the ends of justice and would perpetuate the injustice. These circumstances are certainly of weight to support the abashment of the proceedings.
8. ' Even on merits, I see ample justification to quash the proceedings. The charge against the petitioners is based on the sole allegation that on the relevant night, they took forcible possession of the shop and certain commodities. The facts disclosed by the prosecution are that the shop was being run by Shahzada P. W. 3, and that Azam Khan P. W. 1 was employed as Chowkidar for the shop. It is said that on the relevant night, P. W. Azam Khan, and Nadar Khan P. W. 2 who happens to be the son of Shahzada were present in the shop when at about micl7night, all the petitioners, armed with guns, turned up there and took forcible possession of the shop at the same time removing some major items of the commodities from there. It is alleged that on the morning following the night of occurrence, Shahzada was informed of the incident by his son Nadar and Azam Khan Chowkidar. The entire case of the prosecution hinges on the evidence of Azam Khan, Nadar Khan and Shahzada who have been examined by the Magistrate as prosecution witnesses. I have carefully-analysed their evidence and have considered all the relevant facts and circumstances of the case. The examination of the evidence of these witnesses has not inspired confidence in me that ,it was reliable. There were a number of contradictions and other infirmities in their evidence. According to the prosecution, the occurrence took place on the night between 14th and 15th January, 1974. The Police Station is at a distance of 8/9 miles from the place of occurrence. The report was, however, lodged.At the police station on 16th,January, 1974 at 7.30.a. m.
9. There was thus a delay of more than 24 hours 'in lodging the First Information Report. This delay has not at all been explained by the prosecution. The delay, in my opinion, is fatal to this case because had the occurrence taken place at the time alleged by the prosecution, the matter would have been reported to the police with promptitude. It would also be seen that all the three witnesses named above are closely related inter se. Nadar Khan P. W. Is the sen of Shahzada P. W. While Azam Khan C P. W. Is the father-in-law of Nadar Khan P. W. The wives of Shahzad: and Azam Khan are sisters inter se. They are also inimical to the petitioners as is evident from the statement of Nadar Khan P. W. 2 that prior to the present occurrence, the parties had been bound down unde sections 107/151, Criminal Procedure Code. In such a state of things, the interested and partisan evidence of these three witnesses could not suffice for the conviction of the petitioners more so when there was a delay o more than 24 hours in reporting the matter to the police.
10. ' In the result, I would accept the petition and quash the criminal proceedings pending in the trial Court against the petitioners in. Respect of the alleged commission of the o ffences for IA hich they are being prosecuted.