This order will dispose of Criminal Miscellaneous Applications Nos. 189 and 190 of 1969 filed by petitioner, G. D. Amin, under section 561-A, Cr. P. C. For the quashment of cases bearing Nos. 55 and 56 of 1966 in respect of offences under sections 109, 427-A, 457, 468, 409 and 420, P. P. C. Read with section 5 (2) of Act II of 1947 in the Court of the Special Judge cum-Enquiry Officer, Sukkur.
2. The relevant facts which have led to the filing of these two petitions are these : The petitioner is an Executive Engineer and was posted during the year 1958-59 at Quetta in that capacity in the Public Works Department, Building Division. On 18th August 1959 one Muhammad Ali, an Assistant in the Budget section of the Public Works Department, Provincial Circle, Quetta sent a written letter addressed to the Chief Engineer, Building and Roads, West Pakistan, Lahore, the Director, Anti- Corruption, West Pakistan, Lahore, the Chief Secretary, West Pakistan, Lahore and the Governor, West Pakistan, Lahore, containing allegations against Muhammad Saeed Khan, Additional Chief Engineer, Muhammad Nadir Khan, Superintending Engineer, a few unnamed Sub-Divisional Officers, Abdur Rahim and Kazi Moinuddin and unnamed contractors In respect of the allegations pertaining to forgery, falsification of accounts, cheating and misappropriation. It appears that on the basis of this letter, an enquiry was held and on 20th August 1961, three cases were registered against the petitioner, Abdul Majid Butt, an Overseas, Muhammad Din Kibzai, a contractor, and M. A.
Pathan. Investigation thereafter followed and after the receipt of sanction challans were submitted against the petitioner in the aforestated two cases on 9th March 1966, in the Court of the Special Judge-- cum-Enquiry Officer, Sukkur. Both the cases were fixed together for hearing and the order- sheet also mentions the same details.
3. From the order-sheet of these two cases it appears that from 9th March 1966, till 12th July 1968, no progress was made in the case. The petitioner was also absent on three dates of hearing, that is, on 6th September 1966, 8th March 1967, and 10th November 1967. In the order-sheet of 6th September 1966, the reason for the petitioner's absence has been given but no reason appears as to why the petitioner was absent on the other two dates. All that is mentioned is that notices be issued to his surety as to why the bail bond should not be forfeited. These cases were fixed at Hyderabad and Quetta during the aforestated period. On same dates of bearing other accused stars were also absent. The diary of 24th September 1968, shows that Muhammad the substance of accusation was read to the petitioner and the other accused on this date, to which he had pleaded not guilty. He was also directed to file a list of defence witnesses within 3 days and the case was put off to 11th December 1968. Again on 11th December 1968, summonses were ordered to issue to three prosecution witnesses. On this date, the case was heard at Sukkur. Again, no progress was made on 27th January 1969, and it was ordered that the hearing be put off to 25th March 1969. The petitioner has not filed the copy of the diary of the subsequent hearings after the above date but from the contents of the petition it appears that the cases were again, fixed on 6th May 1969, but nothing happened on that date and the hearing was again adjourned to 25th June 1969. Another feature which I have observed is that long dates were being given for the hearing of these two cases.
4. The learned counsel for the petitioner, on the ground of delay in the progress of the case, has prayed for the quashment of these two cases as, according to him, the petitioner has been harassed for all these three years in attending the Court at Quetta, Hyderabad and Sukkur at great expense and personal incon--venience and that this delay of 3 years in the circumstances of the instant case amounts to an abuse of the process of the Court. At least, from the order-sheet of 12th July 1968, it is apparent that the petitioners and others had requested that the hearing of the case be fixed at Quetta. There could not have been any grievance on account of that if, in fact, the learned Special Judge had fixed the hearing at Quetta. Yet, for the fixation of the cases at Sukkur nothing appears from the order-sheet. If the cases were taken up on tour then it was also the duty of the petitioner to explain to the learned Special Judge his personal difficulties in attending the hearings at Sukkur or at Hyderabad. There being nothing on the record to indicate that the request if made was disallowed, I am not inclined to give any credence to his allegation that he had suffered harassm ent because of the dates of hearing having been fixed at Sukkur or Hyderabad.
5. On the question of delay I am inclined to hold that no substantial justification appears from the case diaries to justify the absence of any progress. Long dates have been given and no substantial reason appears as to why this course as adopted. It is the duty of the Court to see that the trial is concluded within the shortest possible time and unnecessary delays are avoided as in the long run this would not only cause the evidence to dis--appear and thus lead to a miscarriage of justice but would also prejudice the defence of the accused for that reason also.
6. Delay, such as it is in the instant case; cannot by itself constitute a ground for the quashment of the cases. In order that it may amount to an abuse of the process of the Court, it must either be accompanied by some prejudice caused to the petitioner in the matter of his defence, such as the disappearance of evidence in his favour or the death of any witness and such other circumstances of a like nature.
7. Delay, if due to the absence of prosecution witnesses either because of their death or non- availability for a lumber or ware years or the disappearance of documentary evidence and there being no possibility of their being retrieved either because of loss, theft or such other reasons, will also constitute a ground as that event the continuance of the proceedings would either operate or perpetual an it justice. Lastly, there could be a case where the proceedings though commenced in the Court, in which no result in furtherance of justice can accrue, that is, where the, allegations do not constitute an offence and the proceedings are held for a number of years with a view to procure an indirect or perverted result of the case. This is what is deducible, if delay is to be considered as a ground for the quashment of the proceedings as an abuse of the process of the Court, from a decision of their Lordships of the Supreme Court in the case of M. S. Khawaja v. The State (PLD 1965 SC 287). Another observation in the above case at page 290 equally applies to the instant case :- "Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the State. It can only be in a very rare case that a superior Court acting under its inherent power to prevent abuse of the process of any 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 reasons other than reasons going to the question of an offence in law."
Delay, thus by itself would not be a ground for the quashment of the proceedings unless accompanied by other circumstances as visualised above. If the cases are quashed at this stage on the ground of delay there is every likelihood of miscarriage of justice as the allegations against the petitioner are likely to go unexamined altogether. There is, therefore, no substance in these two petitions. Since the trial Court has not taken effective steps for the last three years to conclude the trial of these two cases I would, therefore, direct that these two cases be expeditiously disposed of within a period of three months. With these directions the petitions are dismissed.