On the 7th November 1968 Basharat Ali Mirza filed Writ Petition No. 1841/S of 1968. By order dated the 25th March 1969 the writ petition was converted into a petition (Cr. M. 1680 of 1969) under section 561-A, Cr. P. C. "for quashing the criminal proceedings pending against the petitioner in the Court of Special Judge, Rawalpindi at Lahore".
2. Basharat Ali Mirza petitioner is employed as Tax Clerk in the office of the Cantonment Board, Rawalpindi. In the same Office one Shagufta Gul is employed as a Revenue Collector. On the 1st September 1964, Shagufta Gul was entrusted, by the Cashier, with a sum of Rs. 8,096.80 for disbursement of pay of the staff of four girls schools of the said Board. Shagufta Gul did not disburse the said sum and reported that the bag containing the said sum had been lost. The Executive Officer of the Board lodged F. 1, R. No. 281 dated the 1st September 1964 (copy annexed) at Police Station Rawalpindi Cantonment. The investigation made by the police revealed that Shagufta Gul had cmbezzeled the said sum and further that Basharat Ali Mirza peti tioner and two other persons namely Sher Muhammad and Lai Muhammad had abetted the commission of the said offence. On the 10th September 1964 the petitioner was suspended. On I5th September 1964 he was arrested. On the 17th September 1964 he applied for bail. The police did not furnish the record promptly with the result that on the 22nd September 1964 he was granted interim bail which was conhrmed on the 3rd October 1964. The Investigating Officer applied for grant of sanction for the prosecution of Shagufta Gul in pursuance of subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 but no such sanction was applied for in respect of the petitioner. On the 9th October 1969 the police put the challan in the Court of the Additional District Magistrate (Special Judge), Rawalpindi for trial of Shagufta Gul petitioner, Sher Muhummad and Lai Muhammad under section 409/420, P. P. C. and section 5(2) of the Prevention of Corruption Act, 1947.
3. By order dated the Nth April 1969 the Special Judge was asked to furnish parawise comments in respect of the averments made in the petition. As the report was not furnished promptly by order dated the 22nd December 1969 the proceedings in the trial Court were stayed. Parawise comments have since been received and are at pages 15 to 22 of the record.
4. I have heard Mr. M. A. Falahi learned counsel for the petitioner and Mian Muzaffar Ahmad learned counsel for the State.
5. Learned counsel for the petitioner made the following submissions :--
(a) The police took inordinately long period to complete the investigation which facts resulted in the suspension of the petitioner reduction of his emoluments to 1 /3rd and worries on account of uncertainty.
(b) The police failed to collect any material which could Bashmat Ali connect the petitioner with the commission of the offence with the result that there was no prima facie case against him. The state Investigating Officer did not consider the petitioner guilty and________ did not apply for grant of sanction for his prosecution. Muhammad
(c) The prosecution has throughout acted mala fide. jt/tul Khan,
6. Mian Muzzafar Ahmad learned counsel appearing for the State controverted the above assertions by reference to the judicial hie and the police hie. He urged that although the investigation by the police was complete'by May 1965 certain departmental objections had to be removed. Further some time was taken in obtaining sanction for the prosecution of Shagufta Gul.
As regards the sanction for the prosecution of the petitioner he urged that the absence of the sanction was not fatal to the trial. Incomplete challan was put in Court on the 9th October 1969. He urged that the material collected by the police established a prima facie case against the petitioner as well. He refuted the alleged absence of born fides. He pointed out that the High Court in exercise of the inherent powers under sec tion 561-A, Cr. P. C. was not competent to interfere with the investigation by the police. In this connection, he relied on the case reported as The State v.
Khawaja Nazir Ahmad (1), He conceded that the High Court interfere to prevent the abuse of the process of Court but pointed out that the trial Court did not proceed with the trial because by order dated the 22nd December 1969, the proceedings had been stayed.
7. The summary of accusation given in the challan is to tne following effect. Sher Muhammad alias Torey and Lai Muhammad residents of Peshawar Area were Thugs who would relieve simpletons of their money on the assurance that if any one supplied genuine currency notes to them they could in return supply forged currency notes of double the amount which forged currency notes could easily pass as genuine. They got themselves introduced through the petitioner to Shagufta Gui and eventually it was settled that on the 1st of September 19o4 when Shagufta Gul would get money for disbursement to schooi staff genuine currency notes would be made over to Sher Muhammad and Lai Muhammad. In prosecution of this conspiracy on the 1st September 1964 Sher Muhammad and Lai Muhammad met Shagufta Gul and the petitioner. They used Taxi Car No. PR-193 driven by Umar Khan. Shagufta Gul and the petitioner made over their bag containing genuine currency notes and in return obtained from Sher Muhammad and Lai Muhammad an attache case alleged to contain forged notes. On return to the office Shagufta Gul in accordance with the scheme proclaimed that the sum had been lost. , The prosecution has cited 29 witnesses to support the case. Some of witnesses would prove the entrustment of the sum of Rs. 8,096.80 to Shagufta Gul. These particulars are not disputed. Raunaq Ali Barber would establish that Sher Muhammad and [13] Lai Muhammad were cheats and would be in search of moneyed people who could be duped.
Khaliq Dad of the Empire Hotel, Rawalpindi would establish that on the 30th August 1964 Shagufta Gul and the petitioner contacted Sher Muhammad and Lai Muhammad in the Empire Hotel.
Farzand Ali peon of the Cantonment Board would support Khaliq Dad. Arif Ullah would state that Sher Muhammad and Lai Muhammad engaged his taxi on payment of Rs. 120 and he directed Umar Khan Driver to do the needful. Umar Khan Taxi Driver would establish that on the 1st September 1964 he carried Sher Muhammad and Lai Muhammad to the office of the Cantonment Board and therefrom picked up two persons--later identified as Shagufta Gul and the petitioner.
The man with beard had a bag and made it over to Lai Muhammad. Sher Mohammad had an attache case to the bearded person. The bearded person and his companion would be identified as Shagufta Gul and the peti tioner. Mistri Abdul Ghani would establish that on the 1st September 1964, at 10-00 a.m. Shagufta Gul and the petitioner came to him and asked him to break open the lock of an attache case which he did. He would also identify a particular attache case produced by the petitioner. Khawaja Muhammad Latif would establish that in his presence the petitioner produced a certain attache case about which Mistri Abdul Ghani stated that he had broken open its lock at the instance of Shagufta Gul and the petitioner.
Learned counsel for the State contended that Shagufta Gul having obtained the said amount went in the company of the petitioner with Sher Muhammad and Lai Muhammad and made over that amount to them. In other words Shagufta Gul embezzled the amount entrusted to him by the Cashier and in the commission of this offence he was abetted amongst others by the petitioner.
8. In order to determine whether there is a prima facie case against the petitioner it shall have to be established--
(i) that Shagufta Gul did not merely lose the sum but had actually embezzled the same in the manner mentioned above; and
(W) that the petitioner abetted the commission of the above; offence in the manner mentioned above.
The gist of the evidence collected by the police and set out above would show that there is a pnma facie case against Shagufta Gul regarding the embezzlement and against the petitioner regarding the abetment. The contention made by the learned counsel for the petitioner to the contrary is without force.
9. A perusal of the police file would show that although the investigation was complete in May 1965, delay was caused in obtaining the sanction for the prosecution of Shagufta Gul. The matter had been hanging fire amongst the Executive Officer, Cantonment Board, Rawalpindi, District Magistrate, Rawalpindi, the Commissioner, Rawalpindi and the Central Government. The delay is adequately explained. The delay however does not indicate any mala fides.
10. It is true that so far sanction for the prosecution of the petitioner has not been applied for or obtained. Learned counsel for the State referred to the proviso to subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 19 >8 and urged that grant of such sanction was fatal to the trial and that such sanction shall be obtained by the Special fudge. The proviso runs as follows :-- "Provided that in cases where the complaint for report referred to in subsection (1) of section 4 is not accompanied by such sanction the Special Judge shall immediately on receipt of the complaint or report address by letter the appropriate Government in the matter and if the required sanction is neither received nor refused within sixty days of the receipt of the letter by the appropriate Government such sanction shall be deemed to have been duly accorded: Evidently the absence of sanction for the prosecution of the petitioner is not fatal and the proceedings shall not be quashed for the reason only that sanction had not been obtained before the case was put into Court for trial. It was held in the case reported as Muhammad Rafi v. State (t), as follows :-- "But a delay in instituting proceedings for want of legal sanction or for want of investigation appears to stand on a different footing. If delays of this type are allowed to bar prosecution law of limitation will stand projected in criminal proceedings................. l't is obvious that Law of Limitation is not known to criminal jurisprudence and it is necessary that criminal proceedings should be outside that law............................................................................................. [14] and rarely involves employment of any Court process. Further the ends of justice to secure which the inherent power may be invoked have reference to the purposes, which the judicial process is intended to secure and it is difficult to include the actions of investigating agencies within the scope of judicial process. On the other hand it is possible to agree with the observation that the circumstance of each case in which the inherent power is invoked must be examined with care to determine whether the judicial proceedings is really intended to secure the ends of justice or is really as abuse of the process of the Court. To quash a judicial proceeding in order to secure the ends of justice would involve a finding that if permitted to continue that proceeding 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 in 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 and similar perverse results.** Tt follows that the delay in investigation of the case or ini obtaining 'sanction will not entitle the petitioner to quashmentl under section 561-A, Cr. P. C. of the criminal proceedings pending! against him. I
12. In the instant case the petitioner was suspended on the 10th September 1964 was arrested on the 15th September 1964 and was released on bail on the 22nd September 1964. It is true that as a result of suspension his emoluments were reduced. That is a departmental action for which the prosecution is not to blame. Assuming that the suspension was allowed to exceed the period of 6 months, the petitioner had to seek redress departmentally on the administrative side but could not make the same a grievance for quashment of the criminal proceedings against him.
13. Tt is remarkable that the petitioner asked for action under section 561-A, Cr. P. C. on the 25th March 1969 only. Before that presumably he had no grievance. These proceedings however activated the prosecution who put in the incomplete challan on the 9th October 1969. The fact remains that the case is no longer at the investigation stage and is pending in a Court of law. The proceedings in the Court of law can be quashed provided the proceedings indicate abuse of the process of the Court or it is otherwise necessary to accrue the ends of justice. As seen above the proceedings in the trial Court were suspended by order dated the 22nd December 1969. Thus so far there has been no abuse of the process of that Court.
The evidence analysed above indicates a prima facie ca against the petitioner. Tt is incorrect to contend that there i no prima facte case against the petitioner or that the proceedin are mala fide.
Any action to quash the proceedings would no be aimed to secure the ends of justice rather it would be other wise. In any case it shall be inexpedient to stifle the prosecu tion at this early stage when it did not even get going. Hat.) Nawaz v. Muhammad Afzal (1).
14. The petition is without merit and is hereby dismissed.
15. - It is hardly necessary to add that any observations made regarding the facts of the case as gleaned from the material collected by the police shall not influence the trial Court.
16. As requested by the learned counsel for the petitioner since the case has already been delayed considerably the learned Special Judge shall try to dispose it of expeditiously. .
(1) PLD 1967 SC 354